United States v. De La Torre

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 8, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 02-41711
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO DE LA TORRE,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-623-1
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Antonio De La Torre pleaded guilty to count one of an

indictment charging him for transporting an undocumented alien

within the United States by means of a motor vehicle for private

financial gain. He was sentenced at the top of the guideline

imprisonment range to a 24-month term of imprisonment and to a

three-year period of supervised release. De La Torre has

appealed his conviction and sentence.

*
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this opinion should not be published and is not precedent except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. 02-41711
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De La Torre contends that his sentence should be vacated

because the district court erred in calculating his criminal

history score. Because this question has been raised for the

first time on appeal, we review it for plain error. See United

States v. Olano, 507 U.S. 725, 732 (1993).

The district court assessed three criminal history points,

under U.S.S.G. §§ 4A1.1(c) and 4A1.1(d), because De La Torre had

a 1995 conviction for burglary of a habitation and because he was

on probation at the time of that offense. The parties agree that

it was clear error to assess criminal history points for this

conviction because the offense occurred before De La Torre was

eighteen years old and more than five years before the instant

offense. See U.S.S.G. § 4A1.2(d)(2). They agree that De La

Torre should have been classified as having a criminal history

category II, instead of III, and that his guideline imprisonment

range should have been 15-21 months, instead of 18-24 months.

Because the district court clearly erred and because De La

Torre’s substantial rights were affected, we VACATE the sentence

and REMAND for resentencing. See United States v. Aderholt, 87

F.3d 740, 744 (5th Cir. 1996).

De La Torre contends that his guilty plea should be vacated

because the district court erred in delegating to the magistrate

judge the duty to conduct the FED. R. CRIM. P. 11 plea colloquy,

which he contends is statutorily and constitutionally

impermissible. De La Torre concedes that these issues have been
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resolved contrary to his position in United States v. Dees, 125

F.3d 261, 265–69 (5th Cir. 1997), and states that he has raised

the issues only to preserve them for possible further review.

The conviction is AFFIRMED.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.