* 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that this opinion should not be published and is not precedent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 Court of Appeals

Fifth Circuit

FILED

December 9, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-41713

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSE LUIS MARTINEZ-REBOLLOSO

Defendant - Appellant

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. L-02-CR-1044-ALL

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

Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges. 

PER CURIAM:*

Jose Luis Martinez-Rebolloso (“Martinez”) appeals his

sentence following his guilty-plea conviction for illegal reentry

of the United States after deportation in violation of 8 U.S.C.

§ 1326. 

Martinez argues that the sentencing provisions of 8 U.S.C.

§ 1326(b) are unconstitutional. Martinez acknowledges that his

argument is foreclosed by Almendarez-Torres v. United States, 523
No. 02-41713

-2-

** This rule is now found at FED. R. CRIM. P. 32(e)(2) (2003).

U.S. 224, 235 (1998), but he seeks to preserve his argument for

further review in light of Apprendi v. New Jersey, 530 U.S. 466,

490 (2000). 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). This court must follow

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” Dabeit, 231 F.3d at 984 (internal

quotation marks and citation omitted). Accordingly, Martinez’s

sentence cannot be vacated on this ground.

Martinez also argues that he was not provided the required

35 days to review the PSR prior to sentencing. See FED. R. CRIM.

P. 32(b)(6)(A) (2002).** The rule was violated in this case: the

PSR was prepared on October 25, 2002, Martinez did not waive the

minimum period, and sentencing was held on November 18, 2002. 

The Government concedes that it cannot show that this error was

harmless. See FED. R. CRIM. P. 52(a); Peguero v. United States,

526 U.S. 23, 29-30 (1999). We agree. The error denied Martinez

sufficient time to obtain evidence to support his assertion that

several of his prior convictions were constitutionally invalid

because he had not knowingly and voluntarily waived his right to

counsel in those cases. Therefore, we VACATE his sentence on

this ground and REMAND this case to the district court for

resentencing.
No. 02-41713

-3-

Martinez also argues that he should not have been assessed a

criminal history point for his prior conviction for burglary of a

vehicle. He acknowledges that this issue was not raised below

and that plain-error review applies. Because this offense

occurred prior to age 18, and because the sentence was not

imposed within five years of his commencement of the instant

offense, the district court plainly erred in imposing a criminal

history point. See U.S.S.G. § 4A1.2(d)(2)(B). If this were the

only issue on appeal, we would decline to grant relief; by

itself, the deletion of this single point does not affect the

determination of his criminal history category or the applicable

Guidelines range, and therefore Martinez cannot show that the

error affected his substantial rights. See United States v.

Wheeler, 322 F.3d 823, 827-28 (5th Cir. 2003) (to affect

substantial rights, error must affect outcome of proceedings). 

Because we remand for resentencing, the district court should

consider the issue on remand on a proper objection by Martinez.

Accordingly, Martinez’s sentence is VACATED and this case is

REMANDED to the district court for resentencing.