United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 9, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41713
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSE LUIS MARTINEZ-REBOLLOSO
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1044-ALL
--------------------
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Jose Luis Martinez-Rebolloso (“Martinez”) appeals his
sentence following his guilty-plea conviction for illegal reentry
of the United States after deportation in violation of 8 U.S.C.
§ 1326.
Martinez argues that the sentencing provisions of 8 U.S.C.
§ 1326(b) are unconstitutional. Martinez acknowledges that his
argument is foreclosed by Almendarez-Torres v. United States, 523
*
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that this opinion should not be published and is not precedent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. 02-41713
-2-
U.S. 224, 235 (1998), but he seeks to preserve his argument for
further review in light of Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). 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). This court must follow
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation marks and citation omitted). Accordingly, Martinez’s
sentence cannot be vacated on this ground.
Martinez also argues that he was not provided the required
35 days to review the PSR prior to sentencing. See FED. R. CRIM.
P. 32(b)(6)(A) (2002).** The rule was violated in this case: the
PSR was prepared on October 25, 2002, Martinez did not waive the
minimum period, and sentencing was held on November 18, 2002.
The Government concedes that it cannot show that this error was
harmless. See FED. R. CRIM. P. 52(a); Peguero v. United States,
526 U.S. 23, 29-30 (1999). We agree. The error denied Martinez
sufficient time to obtain evidence to support his assertion that
several of his prior convictions were constitutionally invalid
because he had not knowingly and voluntarily waived his right to
counsel in those cases. Therefore, we VACATE his sentence on
this ground and REMAND this case to the district court for
resentencing.
**
This rule is now found at FED. R. CRIM. P. 32(e)(2) (2003).
No. 02-41713
-3-
Martinez also argues that he should not have been assessed a
criminal history point for his prior conviction for burglary of a
vehicle. He acknowledges that this issue was not raised below
and that plain-error review applies. Because this offense
occurred prior to age 18, and because the sentence was not
imposed within five years of his commencement of the instant
offense, the district court plainly erred in imposing a criminal
history point. See U.S.S.G. § 4A1.2(d)(2)(B). If this were the
only issue on appeal, we would decline to grant relief; by
itself, the deletion of this single point does not affect the
determination of his criminal history category or the applicable
Guidelines range, and therefore Martinez cannot show that the
error affected his substantial rights. See United States v.
Wheeler, 322 F.3d 823, 827-28 (5th Cir. 2003) (to affect
substantial rights, error must affect outcome of proceedings).
Because we remand for resentencing, the district court should
consider the issue on remand on a proper objection by Martinez.
Accordingly, Martinez’s sentence is VACATED and this case is
REMANDED to the district court for resentencing.