Case: 10-50237 Document: 00511245633 Page: 1 Date Filed: 09/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 27, 2010
No. 10-50237
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
FRANCISCO MAR-RIVERA, also known as Francisco Rivera,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1391-1
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Francisco Mar-Rivera pleaded guilty to illegally reentering the United
States following deportation, in violation of 8 U.S.C. § 1326, and received a
sentence of 57 months in prison.
For the advisory Guideline-sentencing range, the probation officer
recommended a 16-level enhancement, pursuant to Guideline § 2L1.2(b)(1)(A)(I),
on the basis that Mar-Rivera’s 2005 Kentucky conviction for trafficking in a
controlled substance in or near a school, for which he received a two-year
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 10-50237
sentence, constituted a drug-trafficking offense. Mar-Rivera contends the
district court improperly imposed the enhancement, claiming the Government
failed to provide sufficient evidence to establish his prior offense constituted
such an offense.
Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the advisory Guideline-sentencing
range for use in deciding on the sentence to impose. Gall v. United States, 552
U.S. 38, 49-51 (2007). In that respect, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005). On the other hand, an issue raised for the
first time on appeal is reviewed only for plain error. E.g., United States v.
Peltier, 505 F.3d 389, 391 (5th Cir. 2007).
As Mar-Rivera concedes, he did not object in district court to the 16-level
enhancement; therefore, this issue is reviewed for plain error. See United States
v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). To establish reversible plain
error, Mar-Rivera must show a clear or obvious error that affects his substantial
rights. E.g., Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he does so,
this court retains the discretion to correct the error; generally, we will do so if
the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
Mar-Rivera is unable to show error, much less reversible plain error. In
conjunction with the addendum to the presentence investigation report, which
Mar-Rivera’s counsel apparently did not receive, the probation officer provided
the district court with copies of the indictment and judgment in the Kentucky
drug-trafficking proceeding. See Shepard v. United States, 544 U.S. 13, 16
(2005) (holding a reviewing court may examine the statutory definition, charging
document, plea colloquy, and any explicit factual finding by the trial judge to
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No. 10-50237
verify an earlier conviction). (Although these documents are not attached to the
addendum in the record on appeal, the Government provided them with its brief
here. They are not challenged in a reply brief.) These documents, along with
the Kentucky drug-trafficking statute, confirm Mar-Rivera’s pre-deportation
crime constituted a “drug trafficking offense”, warranting the 16-level
enhancement. See K Y. R EV. S TAT. A NN. §§ 218A.010(34), 218A.1411 (West 2005);
U.S.S.G. § 2L1.2, cmt. n.1(B)(iv).
In the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Mar-Rivera
challenges the constitutionality of treating prior convictions as sentencing
factors under 8 U.S.C. § 1326(b), rather than elements of the separate offense
that must be presented to the jury. As Mar-Rivera concedes, this contention is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). See
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). He raises
the issue only to preserve it for possible review by the Supreme Court.
AFFIRMED.
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