United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-41755
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO ORTIZ-ROSAS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-629-1
--------------------
Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Rodolfo Ortiz-Rosas pleaded guilty to one charge of
attempted illegal reentry into the United States, and the
district court sentenced him to 90 months in prison and a three-
year term of supervised release. Ortiz-Rosas now appeals his
conviction and sentence.
Ortiz-Rosas argues that the district court relied on
improper factors in determining his sentence. Because Ortiz-
Rosas did not object to these alleged improprieties in 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this opinion should not be published and is not precedent except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.
No. 03-41755
-2-
district court, our review is for plain error only. The sentence
chosen by the district court was proper under the Guidelines, and
the district court could “lawfully and reasonably reinstate it on
remand.” See United States v. Ravitch, 128 F.3d 865, 869 (5th
Cir. 1997). Accordingly, Ortiz-Rosas has not established plain
error in connection with his sentence.
Ortiz-Rosas also argues that the district court plainly
erred by neglecting to inform him that it was not bound by the
Government’s sentencing recommendation and that he had no right
to withdraw his plea if it did not follow this recommendation.
Ortiz-Rosas has not shown a “reasonable probability” that he
would not have pleaded guilty absent the omission. United States
v. Dominguez Benitez, __ S. Ct. __, No. 03-167, 2004 WL 1300161
at *5 (June 14, 2004); see also United States v. Thibodeaux, 811
F.2d 847, 848 (5th Cir. 1987). There is thus no plain error in
connection with this omission.
Ortiz-Rosas contends that the Government breached the plea
agreement by making no argument concerning the appropriate term
of imprisonment at sentencing. This argument is, as he concedes,
foreclosed by United States v. Reeves, 255 F.3d 208, 210 (5th
Cir. 2001). See United States v. Ruff, 984 F.2d 635, 640 (5th
Cir. 1993). Ortiz-Rosas’s argument concerning the
constitutionality of § 1326(b) is likewise foreclosed. See
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),
abrogated on other grounds, United States v. Reyna, 358 F.3d 344,
No. 03-41755
-3-
350 (5th Cir.) (en banc), cert. denied, __ S. Ct.__, No. 03-8903,
2004 WL 316508 (May 24, 2004).
Ortiz-Rosas has shown no reversible error in connection with
his conviction and sentence. Accordingly, the judgment of the
district court is AFFIRMED.