USA v. Francisco Mar-Rivera

Filing

UNPUBLISHED OPINION FILED. [10-50237 Affirmed ] Judge: JLW , Judge: RHB , Judge: FPB Mandate pull date is 10/18/2010 for Appellant Francisco Mar-Rivera [10-50237]

USA v. Francisco Mar-Rivera

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Case: 10-50237

Document: 00511245633

Page: 1

Date Filed: 09/27/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50237 S u m m a r y Calendar September 27, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. F R A N C I S C O MAR-RIVERA, also known as Francisco Rivera, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 3:06-CR-1391-1

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* F r a n c is c o Mar-Rivera pleaded guilty to illegally reentering the United S t a te s following deportation, in violation of 8 U.S.C. § 1326, and received a s e n te n c e of 57 months in prison. For the advisory Guideline-sentencing range, the probation officer r e c o m m e n d e d a 16-level enhancement, pursuant to Guideline § 2L1.2(b)(1)(A)(I), o n the basis that Mar-Rivera's 2005 Kentucky conviction for trafficking in a c o n t r o lle d substance in or near a school, for which he received a two-year
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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s e n te n c e , constituted a drug-trafficking offense.

Mar-Rivera contends the

d is t r ic t court improperly imposed the enhancement, claiming the Government fa ile d to provide sufficient evidence to establish his prior offense constituted s u c h an offense. Although post-Booker, the Guidelines are advisory only, and an ultimate s e n te n c e is reviewed for reasonableness under an abuse-of-discretion standard, t h e district court must still properly calculate the advisory Guideline-sentencing r a n g e for use in deciding on the sentence to impose. Gall v. United States, 552 U .S . 38, 49-51 (2007). In that respect, its application of the Guidelines is

r e v ie w e d de novo; its factual findings, only for clear error. E.g., United States v. C is n e r o s -G u tie r r e z , 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 4 0 4 F.3d 355, 359 (5th Cir. 2005). On the other hand, an issue raised for the fir s t time on appeal is reviewed only for plain error. E.g., United States v. P e ltie r , 505 F.3d 389, 391 (5th Cir. 2007). As Mar-Rivera concedes, he did not object in district court to the 16-level e n h a n c e m e n t ; therefore, this issue is reviewed for plain error. See United States v . Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). To establish reversible plain e r r o r , Mar-Rivera must show a clear or obvious error that affects his substantial r ig h t s . E.g., Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he does so, t h is court retains the discretion to correct the error; generally, we will do so if t h e error seriously affects the fairness, integrity, or public reputation of judicial p r o c e e d in g s . Id. Mar-Rivera is unable to show error, much less reversible plain error. In c o n ju n c t io n with the addendum to the presentence investigation report, which M a r -R iv e r a 's counsel apparently did not receive, the probation officer provided t h e district court with copies of the indictment and judgment in the Kentucky d r u g -tr a ffic k in g proceeding. See Shepard v. United States, 544 U.S. 13, 16 (2 0 0 5 ) (holding a reviewing court may examine the statutory definition, charging d o c u m e n t , plea colloquy, and any explicit factual finding by the trial judge to 2

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Date Filed: 09/27/2010

v e r ify an earlier conviction). (Although these documents are not attached to the a d d e n d u m in the record on appeal, the Government provided them with its brief h e r e . They are not challenged in a reply brief.) These documents, along with t h e Kentucky drug-trafficking statute, confirm Mar-Rivera's pre-deportation c r im e constituted a "drug trafficking offense", warranting the 16-level e n h a n c e m e n t . See KY. REV. STAT. ANN. §§ 218A.010(34), 218A.1411 (West 2005); U.S.S.G. § 2L1.2, cmt. n.1(B)(iv). I n the light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Mar-Rivera c h a lle n g e s the constitutionality of treating prior convictions as sentencing fa c t o r s under 8 U.S.C. § 1326(b), rather than elements of the separate offense t h a t must be presented to the jury. As Mar-Rivera concedes, this contention is fo r e c lo s e d by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). See U n ite d States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). He raises t h e issue only to preserve it for possible review by the Supreme Court. A F F IR M E D .

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