United States v. Reyes-Olvera

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 5, 2003
• Docket: 02-40391
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40391 c/w No. 02-40601 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS REYES-OLVERA,

Defendant-Appellant.

-------------------- Appeals from the United States District Court for the Southern District of Texas USDC No. B-01-CR-499-01 -------------------- February 5, 2003

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Jesus Reyes-Olvera ("Reyes") was convicted after a guilty

plea to illegal reentry into the United States after deportation,

in violation of 8 U.S.C. § 1326, and he was sentenced based on that

offense and the revocation of his probation for an earlier illegal

reentry offense. He raises three issues on appeal, which we review

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40391 c/w No. 02-40601 -2-

for plain error. United States v. Ocana, 204 F.3d 585, 588 (5th

Cir. 2000).

Reyes argues first that the district court erred by

applying U.S.S.G. § 2L1.2(b)(1)(C) at his sentencing. He argues

that his prior felony conviction for possession of cocaine did not

merit the eight-level adjustment provided in § 2L1.2(b)(1)(C) for

an aggravated felony, and that he should have received only the

four-level adjustment provided in § 2L1.2(b)(1)(D) for "any other

felony." Reyes's arguments regarding the definitions of "drug

trafficking offense" and "aggravated felony" for purposes of the

sentencing guidelines were recently rejected by this court in

United States v. Caicedo-Cuero, __ F.3d __ (5th Cir. Nov. 14, 2002,

No. 02-20751), 2002 WL 31521599 at *6-*11. Reyes also argues that

drug possession is not an aggravated felony under 8 U.S.C. §§

1101(a)(43)(B) and 1326(b)(2), but he concedes that his argument is

foreclosed by our precedent in United States v. Rivera, 265 F.3d

310 (5th Cir. 2001), cert. denied, 534 U.S. 1146 (2002), and United

States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), and he

raises the issue only to preserve it for possible Supreme Court

review. Thus, the district court did not plainly err in assessing

an eight-level adjustment.

Reyes next argues that the district court failed to

comply with FED. R. CRIM. P. 32(c)(3)(A) and committed reversible,

plain error when it did not verify that he and his attorney had

read and discussed the presentence report ("PSR"). Reyes contends No. 02-40391 c/w No. 02-40601 -3-

also that noncompliance with Rule 32(c)(3)(A) is reversible error

per se. He concedes, however, that this argument is foreclosed by

our opinion in United States v. Esparza-Gonzalez, 268 F.3d 272, 274

(5th Cir. 2001), cert. denied, 122 S. Ct. 1547 (2002), and he

admits that he raises it only to preserve the issue for Supreme

Court review.

Reyes argues that in light of the district court's

erroneous application of an enhancement under § 2L1.2(b)(1)(C), his

substantial rights were affected by the district court's failure to

ascertain whether he read the PSR with counsel. As previously

noted, however, the district court did not err in applying the

enhancement. The district court also could reasonably infer from

defense counsel's objections to factual matters in the PSR

concerning Reyes's familial and employment information that Reyes

had read and discussed the PSR with counsel. See Esparza-

Gonzalez, 268 F.3d at 274. Further, Reyes does not contend that he

did not read and discuss the PSR with counsel. Id.

Finally, Reyes argues that 8 U.S.C. § 1326(b)(1) and

(b)(2) are unconstitutional because they treat a prior conviction

for an aggravated felony as a sentencing factor and not an element

of the offense. Reyes concedes that this 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 in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi did not

overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see No. 02-40391 c/w No. 02-40601 -4-

also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

Accordingly, this argument lacks merit.

AFFIRMED.