United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 27, 2007
Charles R. Fulbruge III
Clerk
No. 06-50486
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL ANTONIO MATA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:04-CR-67-3
--------------------
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Manuel Antonio Mata appeals the sentence imposed on remand
for resentencing following his guilty-plea convictions for
distributing heroin within 1,000 feet of a school, in violation
of 21 U.S.C. §§ 841(a)(1) and 860 (count five); using a firearm
in connection with a drug-trafficking offense, in violation of
18 U.S.C. § 924(c)(1) (count six); being an unlawful user of a
controlled substance in possession of a firearm, in violation of
21 U.S.C. § 922(g)(3) (count seven); and being a felon in
*
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this opinion should not be published and is not precedent except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. 06-50486
-2-
possession of a firearm, in violation of 21 U.S.C. § 922(g)(1)
(count eight).
Mata also challenges, for the first time, the factual bases
for his guilty pleas to counts 6, 7, and 8, arguing that they
were insufficient and that his convictions and sentences on both
counts 7 and 8 cannot stand because they are based upon his
possession of a single weapon. The Government argues that the
claims should not now be considered. Because these arguments
could have been but were not raised in the original appeal of
this case, they will not now be considered. See United States v.
Lee, 358 F.3d 315, 321 (5th Cir. 2004); United States v.
Matthews, 312 F.3d 652, 657 (5th Cir. 2002); United States v.
Marmolejo, 139 F.3d 528, 530 (5th Cir. 1998). Mata argues that
the miscarriage-of-justice exception to the mandate rule applies
such that we should consider his claims, particularly his
challenge to counts 7 and 8, which the Government concedes has
merit. Because the argument is raised for the first time in his
reply brief, we will not ordinarily consider it. United States
v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989). Moreover, our
refusal to address the claim, which may be raised in a 28 U.S.C.
§ 2255 motion, will not result in a miscarriage of justice
because the sentences imposed on counts 7 and 8 run concurrently
with each other and with the longer 188-month sentence imposed on
count 5, meaning that any error did not affect Mata’s ultimate
sentence.
No. 06-50486
-3-
Mata’s challenge to the U.S.S.G. § 4B1.1 career-offender
enhancement he received is unavailing. No error arises from the
fact that the enhancement was based on judicially determined
facts. See Almendarez-Torres v. United States, 523 U.S. 224
(1998); see also United States v. Guevara, 408 F.3d 252, 261 (5th
Cir. 2005), cert. denied, 126 S. Ct. 1080 (2006); see also United
States v. Johnson, 445 F.3d 793, 797 (5th Cir.), cert. denied,
126 S. Ct. 2884 (2006). The judgment of conviction was
sufficient evidence to establish the fact of his prior
conviction, and his prior Texas conviction for burglary of a
habitation was a crime of violence. See United States v.
Martinez-Cortez, 988 F.2d 1408, 1411-12 (5th Cir. 1993); see also
United States v. Hornsby, 88 F.3d 336, 339 (5th Cir. 1996); cf.
United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir.
2005).
Mata’s assertion that the sentences imposed on counts 5 and
7 are unreasonable is without merit. The sentences imposed on
those counts fell within the properly calculated guidelines range
and were therefore presumptively reasonable, and Mata has pointed
to nothing to overcome that presumption. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also U.S.S.G.
§§ 3D1.1(a)(1) and 3D1.2.
Mata additionally argues that the district court’s judgment
is internally inconsistent, and he moves, pursuant to FED. R.
CRIM. P. 36, for correction of the judgment. We find no clerical
No. 06-50486
-4-
error in the judgment that requires correction. See id.; See
United States v. Steen, 55 F.3d 1022, 1025-26 & n.3 (5th Cir.
1995).
The district court’s judgment is AFFIRMED.