IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21211
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL ACEVEDO-HERNANDEZ, also known as Rafael Acevedo,
also known as David Castro-Paz,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-117-ALL
--------------------
December 12, 2002
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Rafael Acevedo-Hernandez (“Acevedo”) appeals the 37-month
sentence imposed following his guilty plea to a charge that he
violated 8 U.S.C. § 1326 by illegally reentering the United
States after having been deported following an aggravated felony
conviction. Acevedo first argues that the district court’s
failure to determine that he and his counsel had read and
discussed the presentence report (PSR) was a violation of
*
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that this opinion should not be published and is not precedent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. 01-21211
-2-
FED. R. CRIM. P. 32(c)(3)(A) which constituted plain error. As
Acevedo acknowledges, in United States v. Esparza-Gonzalez,
268 F.3d 272, 273-74 (5th Cir. 2001), cert. denied, 122 S. Ct.
1547 (2002), this court rejected the suggestion that it should
treat a Rule 32(c)(3)(A) error “as a structural defect,
requiring automatic reversal,” and held that where an issue of
noncompliance with Rule 32 was not raised in the district court,
this court could “correct the error only if the error was plain
and affected the applicants’ substantial rights.” Esparza-
Gonzalez, 268 F.3d at 273-74.
Acevedo attempts to meet this difficult standard by arguing
that it can be logically inferred, from the fact that arguments
at his sentencing hearing focused on his criminal history,
that the district court’s selection of the maximum term of
imprisonment under the Sentencing Guidelines was influenced by
his criminal history. Acevedo argues that the failure of the
district court to ascertain that he had read and reviewed with
counsel the PSR discussing his criminal history affected his
substantial rights.
Acevedo does not contend that he did not read and discuss
his PSR with defense counsel and 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 his receiving a lesser sentence. “We must uphold a sentence
reviewed for plain error if the court could lawfully and
No. 01-21211
-3-
reasonably reinstate it on remand.” United States v. Ravitch,
128 F.3d 865, 869 (5th Cir. 1997). Acevedo has failed to make
the showing required under the plain error standard. See
Esparza-Gonzalez, 268 F.3d at 273-74; Ravitch, 128 F.3d at 869.
This is a frivolous issue.
Acevedo also argues 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 (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. See Apprendi, 530 U.S. at 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, 531 U.S. 1202 (2001). This court 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
(internal quotation and citation omitted).
AFFIRMED.