United States v. Recio-Vallejo

101 F. App'x 458

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 22, 2004
• Docket: 03-41668
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit

FILED IN THE UNITED STATES COURT OF APPEALS June 22, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-41668 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN RECIO-VALLEJO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-03-CR-612-ALL --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Recio-Vallejo (“Recio”) appeals his guilty plea

conviction and 46-month sentence for illegal reentry into the

United States following an aggravated felony conviction in

violation of 8 U.S.C. § 1326. For the first time on appeal,

Recio argues that the district court erred in assigning a

criminal history point for his sentence for reckless driving.

Recio contends that, had his criminal history score been

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 03-41668 -2-

correctly determined, he would have been in Criminal History

Category II, rather than in Category III.

Because the issue was not raised in the district court,

this court’s review is for plain error only. See United States

v. Olano, 507 U.S. 725, 732 (1993); FED. R. CRIM. P. 52(b). When

reviewing for plain error in the sentencing context, “this court

has concluded that if the trial judge, on remand, could reinstate

the same sentence, it will uphold the sentence imposed despite

the trial court’s error.” United States v. Leonard, 157 F.3d

343, 346 (5th Cir. 1998). Recio admits that, even if his

criminal history score were corrected, the district court could

impose the same 46-month sentence on remand. Accordingly, Recio

has not shown plain error. See id.

Recio acknowledges that Leonard continues to be binding

precedent in the sentencing guidelines context, but he contends

that this court should apply the presumed-prejudice approach

adopted in United States v. Reyna, 358 F.3d 344 (5th Cir.)

(en banc), cert. denied, S. Ct. , 2004 WL 316508 (May 24,

2004). One panel may not overrule the decisions of another

without en banc consideration or an intervening Supreme Court

opinion. See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir.

1997). The en banc decision in Reyna did not extend the

presumption of prejudice to errors that result in the application

of an incorrect guideline range. See Reyna, 358 F.3d at 353. No. 03-41668 -3-

For the first time on appeal, Recio argues that the

sentencing provisions of 8 U.S.C. § 1326(b)(1) & (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Recio acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

seeks to preserve the issue for Supreme Court review. Apprendi

did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at

489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000).

AFFIRMED.