IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Summary Calendar
No. 99-51113
USDC No. DR-99-CR-386-ALL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER DAVID REYES-AGUILAR,
Defendant-Appellant;
____________________
Consolidated with
No. 99-51140
USDC No. DR-99-CR-314-ALL
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO RINCON-VILLARREAL,
Defendant- Appellant;
____________________
Consolidated with
No. 00-50093
USDC No. EP-99-CR-1289-ALL
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
No. 99-51113
c/w Nos. 99-51140 & 00-50093 &
00-50137 & 00-50138 & 00-50081
-2-
LORENZO ALONZO-GONZALEZ,
Defendant-Appellant;
____________________
Consolidated with
No. 00-50137
USDC No. EP-99-CR-1193-ALL
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO FLORES-LOPEZ, also known
as Pedro Lopez,
Defendant-Appellant;
____________________
Consolidated with
No. 00-50138
USDC No. EP-99-CR-1193-ALL-DB
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO HERNANDEZ-RAMOS,
Defendant-Appellant;
____________________
Consolidated with
No. 00-50081
USDC No. SA-99-CR-358-ALL
_____________________
No. 99-51113
c/w Nos. 99-51140 & 00-50093 &
00-50137 & 00-50138 & 00-50081
-3-
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO SANTOS-GONZALEZ, also known as Arnulfo
Rodriguez, also known as Arnulfo Rodriguez-
Gonzalez, also known as Pedro Santos,
Defendant-Appellant.
- - - - - - - - - -
Appeals from the United States District Court
for the Western District of Texas
- - - - - - - - - -
October 18, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
In these consolidated appeals, appellants argue that the
district court violated FED. R. CRIM. P. 32(c)(3)(A) by failing to
verify at sentencing whether the appellants had read their
respective presentence reports and discussed them with counsel.
Appellants contend that this failure is not subject to harmless-
error analysis but requires that their sentences be vacated and
remanded for resentencing. They assert that no showing of
prejudice is necessary and have not attempted to establish
prejudice or argue that they did not review the presentence reports
or discuss them with counsel.
The Government argues that the sentencing transcripts show
that all of the parties were familiar with the presentence reports
*
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. 99-51113
c/w Nos. 99-51140 & 00-50093 &
00-50137 & 00-50138 & 00-50081
-4-
and that no party had further information regarding the reports
that they wanted to proffer to the district court. The Government
asserts, in the alternative, that any Rule 32 error was harmless.
Because appellants did not raise the issue of noncompliance
with Rule 32(c)(3)(A) in the district court, we review this issue
only for plain error. See United States v. Vasquez, 216 F.3d 456,
458-59 (5th Cir. 2000). Under FED. R. CRIM. P. 52(b), this court may
correct forfeited errors only when an appellant shows the following
factors: (1) there is an error, (2) that is clear or obvious, and
(3) that affects his substantial rights. United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing
United States v. Olano, 507 U.S. 725, 731-37 (1993)). “[I]n most
cases the affecting of substantial rights requires that the error
be prejudicial; it must affect the outcome of the proceeding.”
Calverley, 37 F.3d at 164.
None of the appellants allege that they did not read the
presentence report or discuss it with counsel, nor do they allege
prejudice. Therefore, they have not established plain error, and
the convictions and sentences are AFFIRMED.
Appellants also argue that under Apprendi v New Jersey, 120 S.
Ct. 2348 (2000), the district court should not have imposed a
sentence greater than two years based on prior aggravated felonies
under 8 U.S.C. §1326. However, this court is bound to follow
United States v Almendarez-Torres, 523 U.S. 224 (1998), which
clearly rejected that argument. See Agostini v Felton, 521 U.S.
No. 99-51113
c/w Nos. 99-51140 & 00-50093 &
00-50137 & 00-50138 & 00-50081
-5-
203, 237 (1997). Therefore, appellants’ argument is without merit,
and the conviction and sentences are AFFIRMED.
AFFIRMED.