* 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that this opinion should not be published and is not precedent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. 01-21140

c/w No. 01-21142

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO JAVIER REYNA, SR.,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-01-CR-273-1

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

November 7, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Francisco Javier Reyna, Sr., is appealing the sentences

imposed following his guilty plea convictions for conspiracy to

possess with intent to distribute five or more kilograms of

cocaine and for possession with intent to distribute five or more

kilograms of cocaine. Reyna argues that the district court

plainly erred in failing to verify that he and his counsel read

and reviewed the presentence report (PSR) prior to sentencing. 
No. 01-21140 c/w

01-21142

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The district court failed to comply with FED. R. CRIM. P.

32(c)(3)(A) that requires the district court to verify that the

defendant have read and discussed the PSR. However, Reyna has

failed to show that his substantial rights were affected by the

district court’s error. He has failed to assert or demonstrate 

that the PSR contained factual inaccuracies that he could have

challenged if he had reviewed the report earlier. Further, he

did not assert in the district court and has not argued on appeal

that he did not review the PSR with his counsel. Because he has

failed to demonstrate any prejudice arising from the error, he

has failed to demonstrate plain error with respect to this issue. 

See United States v. Esparza-Gonzalez, 268 F.3d 272, 273-74 (5th

Cir. 2001), cert. denied, 122 S. Ct. 1547 (2002).

Reyna argues that the district court also plainly erred in

failing to provide reasons for the particular sentences imposed

in violation of 18 U.S.C. § 3553(c)(1). Although the district

court failed to articulate reasons for the sentence imposed, it

listened to the positions of both parties relative to Reyna’s

role in the offense and the appropriate sentence to be imposed,

considered and adopted the findings in the PSR, and commented on

Reyna’s leadership role in the offense. Insofar as the

Government’s counsel expressed an opinion as to the extent of

Reyna’s drug-trafficking activities, the assertion was supported

by Reyna’s own admissions and the other findings in the PSR. It

can be inferred from the record that the district court chose the
No. 01-21140 c/w

01-21142

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particular sentences imposed in light of Reyna’s extensive

history and involvement in drug-trafficking activities. Reyna

has not demonstrated that the district court’s failure to

articulate specific reasons for the sentences affected his

substantial rights or seriously affected the integrity of the

judicial proceeding. Thus, he has failed to show plain error. 

See United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th

Cir. 2000); United States v. Gore, 298 F.3d 322, 324 (5th Cir.

2002). 

Reyna argues that 21 U.S.C. §§ 841(a), (b) are

unconstitutional because the drug type and quantity involved in

an offense should be treated as elements of the offense in light

of Apprendi v. New Jersey, 530 U.S. 455 (2000). He acknowledges

that this argument is precluded by this court’s decision in

United States v. Slaughter, 238 F.3d 580 (5th Cir. 2000), cert.

denied, 532 U.S. 1045 (2001), but wishes to preserve the issue

for further review. 

This court is bound by its precedent absent an intervening

Supreme Court decision or a subsequent en banc decision. See

United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999). 

Reyna’s challenge to the constitutionality of § 841 is foreclosed

by this court’s precedent. The sentences imposed are AFFIRMED.