IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40391
c/w No. 02-40601
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS REYES-OLVERA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-499-01
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February 5, 2003
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesus Reyes-Olvera ("Reyes") was convicted after a guilty
plea to illegal reentry into the United States after deportation,
in violation of 8 U.S.C. § 1326, and he was sentenced based on that
offense and the revocation of his probation for an earlier illegal
reentry offense. He raises three issues on appeal, which we review
*
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that this opinion should not be published and is not precedent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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for plain error. United States v. Ocana, 204 F.3d 585, 588 (5th
Cir. 2000).
Reyes argues first that the district court erred by
applying U.S.S.G. § 2L1.2(b)(1)(C) at his sentencing. He argues
that his prior felony conviction for possession of cocaine did not
merit the eight-level adjustment provided in § 2L1.2(b)(1)(C) for
an aggravated felony, and that he should have received only the
four-level adjustment provided in § 2L1.2(b)(1)(D) for "any other
felony." Reyes's arguments regarding the definitions of "drug
trafficking offense" and "aggravated felony" for purposes of the
sentencing guidelines were recently rejected by this court in
United States v. Caicedo-Cuero, __ F.3d __ (5th Cir. Nov. 14, 2002,
No. 02-20751), 2002 WL 31521599 at *6-*11. Reyes also argues that
drug possession is not an aggravated felony under 8 U.S.C. §§
1101(a)(43)(B) and 1326(b)(2), but he concedes that his argument is
foreclosed by our precedent in United States v. Rivera, 265 F.3d
310 (5th Cir. 2001), cert. denied, 534 U.S. 1146 (2002), and United
States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), and he
raises the issue only to preserve it for possible Supreme Court
review. Thus, the district court did not plainly err in assessing
an eight-level adjustment.
Reyes next argues that the district court failed to
comply with FED. R. CRIM. P. 32(c)(3)(A) and committed reversible,
plain error when it did not verify that he and his attorney had
read and discussed the presentence report ("PSR"). Reyes contends
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also that noncompliance with Rule 32(c)(3)(A) is reversible error
per se. He concedes, however, that this argument is foreclosed by
our opinion in United States v. Esparza-Gonzalez, 268 F.3d 272, 274
(5th Cir. 2001), cert. denied, 122 S. Ct. 1547 (2002), and he
admits that he raises it only to preserve the issue for Supreme
Court review.
Reyes argues that in light of the district court's
erroneous application of an enhancement under § 2L1.2(b)(1)(C), his
substantial rights were affected by the district court's failure to
ascertain whether he read the PSR with counsel. As previously
noted, however, the district court did not err in applying the
enhancement. The district court also could reasonably infer from
defense counsel's objections to factual matters in the PSR
concerning Reyes's familial and employment information that Reyes
had read and discussed the PSR with counsel. See Esparza-
Gonzalez, 268 F.3d at 274. Further, Reyes does not contend that he
did not read and discuss the PSR with counsel. Id.
Finally, Reyes argues that 8 U.S.C. § 1326(b)(1) and
(b)(2) are unconstitutional because they treat a prior conviction
for an aggravated felony as a sentencing factor and not an element
of the offense. Reyes 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 in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi did not
overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see
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also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Accordingly, this argument lacks merit.
AFFIRMED.