United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT May 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-40608
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALDO VALDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(4:04-CR-122-1)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Reginaldo Valdez was convicted in a bench trial of possessing
approximately 435 grams of methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841, and of being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g). He
received concurrent sentences of life and 120 months in prison,
respectively. The life sentence was imposed pursuant to 21 U.S.C.
§ 841(b)(1)(A) (requiring a mandatory life sentence where the
defendant has committed two prior drug felonies).
*
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this opinion should not be published and is not precedent except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.
Valdez asserts the evidence was insufficient to support his
drug-trafficking conviction because it did not establish he
possessed 435 grams of pure methamphetamine. A drug quantity in
the indictment is needed if the Government is seeking to enhance a
sentence pursuant to § 841(b)(1)(A). See United States v. Doggett,
230 F.3d 160, 164-65 (5th Cir. 2000), cert. denied, 531 U.S. 1177
(2001). Pursuant to the standard of review for a bench trial,
Valdez cannot establish that no “rational trier of fact could have
found that the evidence established guilt beyond a reasonable
doubt”. United States v. Shelton, 325 F.3d 553, 557 (5th Cir.),
cert. denied, 540 U.S. 916 (2003). To the extent Valdez is
asserting that the difference between the allegations in the
indictment and the proof at trial constituted a fatal variance, any
such error was harmless. See United States v. Thomas, 12 F.3d
1350, 1357 (5th Cir.), cert. denied, 511 U.S. 1095 (1994).
Valdez contends that the district court denied him due process
by failing, before sentencing, to conduct the colloquy required by
21 U.S.C. § 851(b) (requiring the district court to ask the
defendant whether he affirms or denies that he has been previously
convicted and to inform him any subsequent challenge to these
convictions may not be raised post-sentencing). Because he did not
raise this claim in the district court, we review only for plain
error. United States v. Thomas, 348 F.3d 78, 86 (5th Cir. 2003),
cert. denied, 540 U.S. 1207 (2004). Even if error is presumed,
2
Valdez has failed to establish it affected his substantial rights.
See United States v. Fragoso, 978 F.2d 896, 902-03 (5th Cir. 1992),
cert. denied, 507 U.S. 1012 (1993).
Valdez also asserts that § 851(b), (c)(2), and (e) (defendants
seeking to challenge a prior conviction on constitutional grounds
must do so with particularity prior to sentencing, showing by a
preponderance of the evidence any issue of fact, or else the claim
is waived; any convictions older than five years may not be
challenged) violate the Suspension Clause, U.S. CONST. art. I, § 9,
cl. 2, because they limit a defendant’s ability to collaterally
attack his prior convictions. He cannot establish that these
limitations in the avenues of relief constitute a violation of the
Constitution. See, e.g., Felker v. Turpin, 518 U.S. 651, 664
(1996)(limiting successive habeas applications does not violate
Suspension Clause).
AFFIRMED
3