IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

Summary Calendar

No. 99-51113

USDC No. DR-99-CR-386-ALL

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER DAVID REYES-AGUILAR,

Defendant-Appellant;

____________________

Consolidated with

No. 99-51140

USDC No. DR-99-CR-314-ALL

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FERNANDO RINCON-VILLARREAL,

Defendant- Appellant;

____________________

Consolidated with

No. 00-50093

USDC No. EP-99-CR-1289-ALL

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus
No. 99-51113

c/w Nos. 99-51140 & 00-50093 & 

00-50137 & 00-50138 & 00-50081

-2-

LORENZO ALONZO-GONZALEZ,

Defendant-Appellant;

____________________

Consolidated with

No. 00-50137

USDC No. EP-99-CR-1193-ALL

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO FLORES-LOPEZ, also known

as Pedro Lopez,

Defendant-Appellant;

____________________

Consolidated with

No. 00-50138

USDC No. EP-99-CR-1193-ALL-DB

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO HERNANDEZ-RAMOS,

Defendant-Appellant;

____________________

Consolidated with

No. 00-50081

USDC No. SA-99-CR-358-ALL

_____________________
No. 99-51113

c/w Nos. 99-51140 & 00-50093 & 

00-50137 & 00-50138 & 00-50081

-3-

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that this opinion should not be published and is not precedent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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO SANTOS-GONZALEZ, also known as Arnulfo

Rodriguez, also known as Arnulfo RodriguezGonzalez, also known as Pedro Santos,

Defendant-Appellant.

- - - - - - - - - -

Appeals from the United States District Court

for the Western District of Texas

- - - - - - - - - -

October 18, 2000

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

In these consolidated appeals, appellants argue that the

district court violated FED. R. CRIM. P. 32(c)(3)(A) by failing to

verify at sentencing whether the appellants had read their

respective presentence reports and discussed them with counsel.

Appellants contend that this failure is not subject to harmlesserror analysis but requires that their sentences be vacated and

remanded for resentencing. They assert that no showing of

prejudice is necessary and have not attempted to establish

prejudice or argue that they did not review the presentence reports

or discuss them with counsel.

The Government argues that the sentencing transcripts show

that all of the parties were familiar with the presentence reports
No. 99-51113

c/w Nos. 99-51140 & 00-50093 & 

00-50137 & 00-50138 & 00-50081

-4-

and that no party had further information regarding the reports

that they wanted to proffer to the district court. The Government

asserts, in the alternative, that any Rule 32 error was harmless.

Because appellants did not raise the issue of noncompliance

with Rule 32(c)(3)(A) in the district court, we review this issue

only for plain error. See United States v. Vasquez, 216 F.3d 456,

458-59 (5th Cir. 2000). Under FED. R. CRIM. P. 52(b), this court may

correct forfeited errors only when an appellant shows the following

factors: (1) there is an error, (2) that is clear or obvious, and

(3) that affects his substantial rights. United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing

United States v. Olano, 507 U.S. 725, 731-37 (1993)). “[I]n most

cases the affecting of substantial rights requires that the error

be prejudicial; it must affect the outcome of the proceeding.”

Calverley, 37 F.3d at 164. 

None of the appellants allege that they did not read the

presentence report or discuss it with counsel, nor do they allege

prejudice. Therefore, they have not established plain error, and

the convictions and sentences are AFFIRMED.

Appellants also argue that under Apprendi v New Jersey, 120 S.

Ct. 2348 (2000), the district court should not have imposed a

sentence greater than two years based on prior aggravated felonies

under 8 U.S.C. §1326. However, this court is bound to follow

United States v Almendarez-Torres, 523 U.S. 224 (1998), which

clearly rejected that argument. See Agostini v Felton, 521 U.S.
No. 99-51113

c/w Nos. 99-51140 & 00-50093 & 

00-50137 & 00-50138 & 00-50081

-5-

203, 237 (1997). Therefore, appellants’ argument is without merit,

and the conviction and sentences are AFFIRMED.

AFFIRMED.