UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50762
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS OCHOA-HOLGUIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(EP-90-CR-333-2)
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July 9, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM*:
Carlos Ochoa-Holguin, #51745-080, appeals, pro se, the
district court’s amended criminal judgment after resentencing. The
district court had the authority to resentence him on the remaining
drug counts after granting his 28 U.S.C. § 2255 motion (based on
vacating his conviction under 18 U.S.C. § 924(c), pursuant to
*
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that this opinion should not be published and is not precedent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.
Bailey v. United States, 116 S. Ct. 501 (1995)), and remanding for
resentencing. United States v. Rodriguez, No. 96-30878, 1997 WL
265121, (5th Cir. May 20, 1997).
The district court did not clearly err in applying the
U.S.S.G. § 2D1.1(b)(1) two-level upward adjustment for possession
of a weapon. See United States v. Otero, 868 F.2d 1412 (5th Cir.
1989). And, Ochoa-Holguin did not object to the allegedly late
disclosure of the presentence report. Accordingly, we review only
for plain error. There was none. Among other things, any late
disclosure did not affect Ochoa-Holguin’s substantial rights.
United States v. Calverley, 37 F.3d 160 (5th Cir. 1994)(en banc).
Finally, the resentencing transcript shows that the
allegedly late disclosure of the amended presentence report did not
affect Ochoa-Holguin’s ability to object to incorrect information
about an alleged second weapon; and that Ochoa-Holguin did not
otherwise receive ineffective assistance of counsel at
resentencing.
AFFIRMED