United States v. Ortiz-Rosas

102 F. App'x 883

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 20, 2004
• Docket: 03-41755
• Status: Unpublished

Opinion

PER CURIAM: *

Rodolfo Ortiz-Rosas pleaded guilty to one charge of attempted illegal reentry into the United States, and the district court sentenced him to 90 months in prison and a three-year term of supervised release. Ortiz-Rosas now appeals his conviction and sentence.

Ortiz-Rosas argues that the district court relied on improper factors in determining his sentence. Because Ortizr-Rosas did not object to these alleged improprieties in the district court, our review is for plain error only. The sentence chosen by the district court was proper under the Guidelines, and the district court could “lawfully and reasonably reinstate it on remand.” See United States v. Ravitch, 128 F.3d 865, 869 (5th Cir.1997). Accordingly, Ortiz-Rosas has not established plain error in connection with his sentence.

Ortiz-Rosas also argues that the district court plainly erred by neglecting to inform him that it was not bound by the Government’s sentencing recommendation and that he had no right to withdraw his plea if it did not follow this recommendation. Ortiz-Rosas has not shown a “reasonable probability” that he would not have pleaded guilty absent the omission. United States v. Dominguez Benitez, — S.Ct. -, No. 03-167, — U.S. - at -, 124 S.Ct. 2333 at 2339, 159 L.Ed.2d 157 at -, 2004 WL 1300161 at *5 (June 14, 2004); see also United States v. Thibodeaux, 811 F.2d 847, 848 (5th Cir.1987). There is thus no plain error in connection with this omission.

Ortiz-Rosas contends that the Government breached the plea agreement by making no argument concerning the appropriate term of imprisonment at sen tencing. This argument is, as he concedes, foreclosed by United States v. Reeves, 255 F.3d 208, 210 (5th Cir.2001). See United States v. Ruff, 984 F.2d 635, 640 (5th Cir. 1993). Ortiz-Rosas’s argument concerning the constitutionality of § 1326(b) is likewise foreclosed. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000), abrogated on other grounds, United States v. Reyna, 358 F.3d 344, 350 (5th Cir.) (en banc), cert. denied, — U.S. -, 124 S.Ct. 2390, 158 L.Ed.2d 966 (2004).

Ortiz-Rosas has shown no reversible error in connection with his conviction and sentence. Accordingly, the judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 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 5th Cir. R. 47.5.4.