### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 10-51057 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. IGNACIO OLVERA, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:10-CR-1484-1

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * Ignacio Olvera pleaded guilty to consp ir ac y to possess five kilograms or
more of cocaine with intent to distribute and possession of five kilograms or more of cocaine with intent to distribute, in violation of 21 U.S.C. § § 8 4 1 , 8 4 6

. The district court sentenced him to 168 months in prison and five years of supervised release. Olvera appeals, c h allenging the district court’s determination of his sentence and asserting that trial counsel rendered ineffe c tive assistance. In his first point of error, Olvera contends that the district court failed to make independent determi n ations of disputed issues of fact regarding the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 22, 20 11 Lyle W . Cayce Clerk

Pur sua nt to 5 TH C IR

. R. 47.5 , the court has det erm ined thatthisop inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 10-51057 Document: 00511578277 Page: 1 Date Filed: 08/22/2011No. 10-51057

quantity of cocaine for which he was held accountable. Olvera failed to raise this objection in the district court, and we review for plain error. See United States v. Gonzalez-Terrazas , 529 F.3d 293, 296 (5th Cir. 200 8). Although a district court must resolve di s p utes as to facts on which it intends to rely for sentencing, United States v. Rodriguez , 897 F.2d 1324, 1327- 28 (5th Cir. 1990), Olvera raised no objections to the drug quantity calculations in the presenten c e r e p o rt (PSR), nor did he offer any evidence to rebut those calculations. The district court was th u s f r e e t o adopt the facts in the PSR without further i n quiry or findings. See United States v. Rodriguez , 602 F.3d 346, 363 (5th Cir. 2010). Olvera has demonstrated no e rr o r , much less plain error. See id. Olvera next argues that the district court violated the Sixth Amendment rule set forth in Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), and Blakely

v. Washington , 542 U.S. 296, 301 (2004), by considering facts outside those admitted as part of his guilty plea, including his criminal history and the drug quantity determination. We again review for plain error. See United States v. Gore, 298 F.3d 322, 324 (5th Cir. 2002). In United States v. Booker , 543 U.S. 220 (2 0 0 5 ) , the Supreme Court remedied the Sixth Amendment error resulting from judicial factfinding under the Guidelines by exci s i n g statutory provisions making the Guidelines mandatory and r e n dering them advisory only. United States v. Johnson , 445 F.3d 793, 797-98 (5th Cir. 2006); United States v. Mares , 402 F.3d 511, 519 (5th Cir. 2005). Under this advisory sentencing regime, a district court is free to find all f a c t s relevant to sentencing by a preponderance of the evidence without running afoul of the Sixth Amendment. United States v. Whitfield , 590 F.3d 325, 367 (5th Cir. 2009), cert. denied , 131 S.Ct. 136 (2010). Olvera’s contention to the contrary is, therefore, mistaken. See Johnson , 445 F.3d at 797-98. He has failed to demonstrate any error, plain or otherwise.

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Finally, with respect to Olvera’s claims of ineffective assistance of counsel, there is no record on which we can assess the professional rea s o n ableness of counsel’s performance or any prejudicial effect. See Massaro v. United States , 538 U.S. 500, 505 (2003); United States v. Cantwell , 470 F.3d 1087, 1091 (5th Cir. 2006). Accordingly, we decline to reach Olvera’s claims, without prejudice to Olvera’s ability to bring them in a motion pursuant to 28 U.S. C. § 2255. AFFIRMED.

3 Case: 10-51057 Document: 00511578277 Page: 3 Date Filed: 08/22/2011