United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 7, 2006
Charles R. Fulbruge III
Clerk
No. 05-50504
c/w No. 05-51208
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO GARCIA-DUARTE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(3:04-CR-2202-2)
(3:04-CR-2684-ALL)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, Guillermo Garcia-Duarte challenges
his guilty-plea convictions: (1) for attempting to enter, and
entering, the United States without permission; and (2) for, on that
same day of illegal entry, conspiracy, importation, and possession
of 100 kilograms or more of marijuana. The district sentenced
Garcia-Duarte to concurrent, 120-month terms of imprisonment for
each offense.
*
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this opinion should not be published and is not precedent except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.
For the first time on appeal, Garcia-Duarte asserts the
district court erred in accepting his guilty plea to the
illegal-reentry offense because the Government’s factual basis was
insufficient to support the required finding that he "entered" the
United States free from official restraint. He acknowledges our
review is only for plain error. See United States v. Marek, 238
F.3d 310, 315 (5th Cir.), cert. denied, 534 U.S. 813 (2001).
Although an illegal-entry offense is comprised of both
physical presence in the United States and freedom from official
restraint, see United States v. Morales-Palacios, 369 F.3d 442, 446
(5th Cir.), cert. denied, 543 U.S. 825 (2004), we decline,
especially on plain-error review, to accept Garcia-Duarte’s
assertion that the Border Patrol Agent’s viewing him through an
infrared unit constituted official restraint. Moreover, because
Garcia-Duarte does not contest the sufficiency of the factual basis
supporting his guilty plea with respect to his conviction for
attempted entry, we reject his contention that the Government’s
factual basis was insufficient to support that plea. See United
States v. Harvard, 103 F.3d 412, 420 (5th Cir.), cert. denied, 522
U.S. 824 (1997).
Also for the first time on appeal, Garcia-Duarte asserts the
court erred in relying on the "hearsay statements" in the modified
presentence investigation report (PSR) to enhance his sentence for
the illegal-reentry offense, based on his having a prior felony
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drug-trafficking offense. He does not challenge the fact of the
conviction; nor does he assert the conviction was not the kind that
could be used to support the enhancement. Rather, he contends the
PSR’s recitation of "second-hand" facts describing the prior
conviction is the "kind of proof" that the Supreme Court has found
inadequate to support a sentence enhancement. In support, he cites
Shepard v. United States, 544 U.S. 13 (2005) and Taylor v. United
States, 495 U.S. 575 (1990).
In post-Shepard decisions, this court has continued to hold:
a district court may rely on information provided in the PSR in
making sentencing determinations; and it is the defendant’s burden
to show “the information in the PSR relied on by the district court
is materially untrue”. United States v. Betancourt, 422 F.3d 240,
248 (5th Cir. 2005) (internal quotation omitted). As Garcia-Duarte
does not dispute the accuracy of the PSR’s recitation of his prior
offense, he has not shown error, plain or otherwise, in the
district court’s reliance on the PSR. Further, because he was
subject to a mandatory minimum sentence of 120 months of
imprisonment, he cannot demonstrate that the district court’s
error, if any, affected his substantial rights. See United States
v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006).
Garcia-Duarte’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he contends Almendarez-Torres was incorrectly decided and
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a majority of the Supreme Court would overrule it in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly
held it remains binding. See United States v. Garza-Lopez, 410
F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Garcia-Duarte concedes his claim is foreclosed in the light of
Almendarez-Torres and circuit precedent, but preserves it for
further review.
AFFIRMED
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