United States v. Najera-Ojeda

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 11, 1996
• Docket: 95-10803
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 95-10803

(Summary Calendar) _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL NAJERA-OJEDA,

Defendant-Appellant.

Appeal from the United States District Court For the Northern District of Texas (6:95-CR-0002-C)

July 2, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Manuel Najera-Ojeda pleaded guilty to illegal reentry into the

United States after previous deportation, in violation of 8 U.S.C.

§ 1326. He filed a timely notice of appeal, and we affirm.

Najera-Ojeda argues that the district court entered an illegal

sentence by failing to follow FED. R. CRIM. P. 32(c)(3)(A). We have

* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. reviewed the record and hold that the district court substantially

followed Rule 32(c)(3)(A). See United States v. Victoria, 877 F.2d

338, 340 (5th Cir. 1989) (stating that “a court may draw reasonable

inferences from court documents, the defendant’s statements, and

counsel’s statements when determining whether a defendant has ‘had

the opportunity to read and discuss’ the PSIR with his counsel”)

(quoting United States v. Miller, 849 F.2d 896, 898 (4th Cir.

1988)). Even assuming that the district court erred in failing to

specifically ask Najera-Ojeda and his counsel whether they had read

and discussed the PSR, Najera-Ojeda must demonstrate that the error

was not harmless. See FED. R. CRIM. P. 52(a) (“Any error, defect,

irregularity or variance which does not affect substantial rights

shall be disregarded.”); United States v. Boutte, 13 F.3d 855, 858

(5th Cir.) (stating that a defendant must show with some

particularity how the district court’s violation of the Rules of

Criminal Procedure hindered his defense), cert. denied, ___ U.S.

___, 115 S. Ct. 71, 130 L. Ed. 2d 27 (1994). Najera-Ojeda does not

claim prejudice as a result of the court’s violation of Rule

32(c)(3)(A), nor does he even allege that he did not read and

discuss the PSR with his attorney. We therefore hold that any

error was harmless.

Acknowledging that Fifth Circuit precedent is contrary to his

position, Najera-Ojeda argues that his sentence was imposed in

violation of the law because the indictment did not contain an

-2- allegation that he committed a prior felony. See United States v.

Vasquez-Olvera, 999 F.2d 943, 945-46 (5th Cir. 1993) (holding that

the indictment need not contain an allegation that the defendant

committed a prior felony if he is to be convicted under 8 U.S.C.

§ 1326(b)(2)), cert. denied, ___ U.S. ___, 114 S. Ct. 889, 127 L.

Ed. 2d 82 (1994). Because we cannot overrule a decision of another

Fifth Circuit panel, we hold that Najera-Ojeda has failed to

demonstrate any reversible error.2 See United States v. Taylor,

933 F.2d 307, 313 (5th Cir.), cert. denied, 502 U.S. 883, 112 S.

Ct. 235, 116 L. Ed. 2d (1991).

For the foregoing reasons, we AFFIRM Najera-Ojeda’s

conviction.

2 We also note that Najera-Ojeda has failed to demonstrate that this error is jurisdictional. See United States v. Owens, 996 F.2d 59, 60 (5th Cir. 1993) (“By pleading guilty to an offense, a criminal defendant waives all non- jurisdictional defects preceding the plea.”).

-3-