* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-20535

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS GONZALEZ-ROJAS,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-01-CR-910-ALL

--------------------

December 12, 2002

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Jose Luis Gonzalez-Rojas (“Gonzalez”) appeals the 41-month

sentence imposed following his guilty plea to a charge that he

violated 8 U.S.C. § 1326 by illegally reentering the United

States after having been deported following an aggravated felony

conviction. Gonzalez first argues that the district court’s

failure to determine that he and his counsel had read and

discussed the presentence report (PSR) was a violation of

FED. R. CRIM. P. 32(c)(3)(A) which constitutes plain error. 
No. 02-20535

-2-

As Gonzalez acknowledges, in United States v. Esparza-Gonzalez,

268 F.3d 272, 273-74 (5th Cir. 2001), cert. denied, 122 S. Ct.

1547 (2002), this court rejected the suggestion that it should

treat a Rule 32(c)(3)(A) error “as a structural defect,

requiring automatic reversal,” and held that where an issue of

noncompliance with Rule 32 was not raised in the district court,

this court could “correct the error only if the error was plain

and affected the applicants’ substantial rights.” EsparzaGonzalez, 268 F.3d at 273-74. 

Gonzalez argues that the district court’s selection of the

maximum term of imprisonment under the Sentencing Guidelines was

influenced by his criminal history, which the district court

catalogued at the sentencing hearing. He submits that the

failure of the district court to ascertain that he had read and

reviewed with counsel the PSR discussing his criminal history

affected his substantial rights. 

Gonzalez does not contend that he did not read and discuss

his PSR with defense counsel and does not assert that the

criminal history in the PSR contained factual inaccuracies that

he could have challenged and, if corrected, would have resulted

in his receiving a lesser sentence. “We must uphold a sentence

reviewed for plain error if the court could lawfully and

reasonably reinstate it on remand.” United States v. Ravitch,

128 F.3d 865, 869 (5th Cir. 1997). Gonzalez has failed to make

the showing required under the plain error standard. See
No. 02-20535

-3-

Esparza-Gonzalez, 268 F.3d at 273-74; Ravitch, 128 F.3d at 869. 

This is a frivolous issue. 

Gonzalez also argues that the sentencing provisions of 

8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). He concedes that

this argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but he seeks to preserve the

issue for Supreme Court review. Apprendi did not overrule

Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.

denied, 531 U.S. 1202 (2001). This court must follow the

precedent set in Almendarez-Torres “unless and until the Supreme

Court itself determines to overrule it.” Dabeit, 231 F.3d at 984

(internal quotation and citation omitted).

AFFIRMED.