United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 11, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-41245
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALONSO GONZALEZ-BARREIRO, also known as Jose Gonnzalez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No.7:06-CR-389-1
--------------------
Before JONES, Chief Judge, HIGGINBOTHAM and SMITH, Circuit
Judges.
PER CURIAM:*
Jose Alonso Gonzalez-Barreiro appeals his guilty-plea
conviction and sentence for illegal reentry following deportation
in violation of 8 U.S.C. § 1326(a) and (b). He argues first that
his criminal history score was miscalculated because he should have
received zero, instead of one, criminal history point(s) for his
prior state conviction for evading a peace officer and that he
should have received only four, instead of six points, for his two
state probation revocation sentences.
*
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this opinion should not be published and is not precedent except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.
We disagree with Gonzalez-Barreiro’s assertion that he
adequately preserved his objection to the criminal history point
assessed for his state conviction for evading a peace officer. The
only mention of that conviction before the district court was in
the context of Gonzalez-Barreiro’s written request for a downward
departure wherein he referenced the “technical[]” error of
assessing a point for that conviction as a basis for a downward
departure. Moreover, when the district court asked Gonzalez-
Barreiro what objections needed a ruling from the court, Gonzalez-
Barreiro made no mention of his conviction for evading a peace
officer. Cf. United States v. Ocana, 204 F.3d 585, 589 (5th Cir.
2000). With respect to his criminal history, Gonzalez-Barreiro
stated only that he requested a downward departure because he
believed it was over-represented.
Accordingly, we review all of Gonzalez-Barreiro’s challenges
to his criminal history score for plain error. Assuming the
assignment of the three criminal history points was error that was
plain, Gonzalez-Barreiro cannot show that such error affected his
substantial rights. Although Gonzalez-Barreiro argues that,
because the district court sentenced him to the bottom of the
erroneously calculated guidelines range, the district court would
also have sentenced him to the bottom of the correctly calculated
guidelines range, a sentence at the bottom of the guidelines range
does not alone establish that the error affected the defendant’s
2
substantial rights. See United States v. Bringier, 405 F.3d 310,
317 & n.4 (5th Cir.), cert. denied, 126 S. Ct. 264 (2005).
Gonzalez-Barreiro contends that the presumption of
reasonableness this court accords sentences imposed within the
advisory guidelines range erroneously constrains the district
court’s discretion. This argument is now foreclosed by Rita v.
United States, No. 06-5754 (U.S. June 21, 2007), which upheld this
court’s post-Booker methodology articulated in United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005).
Finally, Gonzalez-Barreiro challenges the constitutionality of
8 U.S.C. § 1326(b) in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Gonzalez-Barreiro’s constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Accordingly, Gonzalez-Barreiro’s conviction and sentence are
AFFIRMED.
3