United States v. Ignacio Olvera

Case: 10-51057 Document: 00511578277 Page: 1 Date Filed: 08/22/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 22, 2011
No. 10-51057
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

IGNACIO OLVERA,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-1484-1

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ignacio Olvera pleaded guilty to conspiracy to possess five kilograms or
more of cocaine with intent to distribute and possession of five kilograms or more
of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841, 846. The
district court sentenced him to 168 months in prison and five years of supervised
release. Olvera appeals, challenging the district court’s determination of his
sentence and asserting that trial counsel rendered ineffective assistance.
In his first point of error, Olvera contends that the district court failed to
make independent determinations of disputed issues of fact regarding the

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-51057 Document: 00511578277 Page: 2 Date Filed: 08/22/2011

No. 10-51057

quantity of cocaine for which he was held accountable. Olvera failed to raise this
objection in the district court, and we review for plain error. See United States
v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir. 2008).
Although a district court must resolve disputes as to facts on which it
intends to rely for sentencing, United States v. Rodriguez, 897 F.2d 1324, 1327-
28 (5th Cir. 1990), Olvera raised no objections to the drug quantity calculations
in the presentence report (PSR), nor did he offer any evidence to rebut those
calculations. The district court was thus free to adopt the facts in the
PSR without further inquiry or findings. See United States v. Rodriguez, 602
F.3d 346, 363 (5th Cir. 2010). Olvera has demonstrated no error, much less
plain error. See id.
Olvera next argues that the district court violated the Sixth Amendment
rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Blakely
v. Washington, 542 U.S. 296, 301 (2004), by considering facts outside those
admitted as part of his guilty plea, including his criminal history and the drug
quantity determination. We again review for plain error. See United States v.
Gore, 298 F.3d 322, 324 (5th Cir. 2002).
In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court
remedied the Sixth Amendment error resulting from judicial factfinding under
the Guidelines by excising statutory provisions making the Guidelines
mandatory and rendering them advisory only. United States v. Johnson, 445
F.3d 793, 797-98 (5th Cir. 2006); United States v. Mares, 402 F.3d 511, 519 (5th
Cir. 2005). Under this advisory sentencing regime, a district court is free to find
all facts relevant to sentencing by a preponderance of the evidence without
running afoul of the Sixth Amendment. United States v. Whitfield, 590 F.3d 325,
367 (5th Cir. 2009), cert. denied, 131 S.Ct. 136 (2010). Olvera’s contention to the
contrary is, therefore, mistaken. See Johnson, 445 F.3d at 797-98. He has failed
to demonstrate any error, plain or otherwise.

2
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No. 10-51057

Finally, with respect to Olvera’s claims of ineffective assistance of counsel,
there is no record on which we can assess the professional reasonableness of
counsel’s performance or any prejudicial effect. See Massaro v. United States,
538 U.S. 500, 505 (2003); United States v. Cantwell, 470 F.3d 1087, 1091 (5th
Cir. 2006). Accordingly, we decline to reach Olvera’s claims, without prejudice
to Olvera’s ability to bring them in a motion pursuant to 28 U.S.C. § 2255.
AFFIRMED.