United States v. Vasquez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20268 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ALBERTO VASQUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-725-1 -------------------- December 11, 2002

Before JOLLY, DAVIS, and JONES, Circuit Judges.

PER CURIAM:*

Juan Alberto Vasquez appeals the 60-month sentence imposed

following his entry of a guilty plea to a charge that he violated

8 U.S.C. § 1326 by illegally reentering the United States

following deportation and subsequent to a conviction for an

aggravated felony.

Vasquez asserts that the district court did not comply with

FED. R. CRIM. P. 32(c)(3)(A) and committed reversible error when

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20268 -2-

it did not verify that he and his attorney had read and discussed

the presentence report (“PSR”). He asserts that the district

court’s omission was plain error that affected his substantial

rights. He makes this assertion notwithstanding the fact that he

does not contest the correctness of the PSR and fails to allege

any prejudice whatsoever.

Vasquez contends also that noncompliance with FED. R. CRIM.

P. 32(c)(3)(A) is reversible error per se. Vasquez 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 the argument only to preserve the issue for Supreme

Court review.

We review Vasquez’s contention that the district court did

not comply with FED. R. CRIM. P. 32(c)(3)(A) and that the lack of

compliance affected his substantial rights for plain error.

Esparza-Gonzalez, 268 F.3d at 274.

Vasquez does not contend that he did not read and discuss

the PSR with defense counsel, and he does not assert that the

criminal history in the PSR contained factual inaccuracies that

he could have challenged and, if corrected, would have resulted

in a more lenient sentence. “We must uphold a sentence reviewed

for plain error if the court could lawfully and reasonably

reinstate it on remand.” United States v. Ravitch, 128 F.3d 865,

869 (5th Cir. 1997). Vasquez has not shown that any error No. 02-20268 -3-

affected his substantial rights. Esparza-Gonzalez, 268 F.3d

at 274. This is a frivolous issue.

Vasquez contends that the sentencing provisions of 8 U.S.C.

§ 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000). He 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.

Apprendi did not overrule Almendarez-Torres. Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000). We must follow the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” Dabeit, 231 F.3d at 984.

Accordingly, the district court’s judgment is AFFIRMED.