IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 conspiracy 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. §§ 841, 846. The

district court sentenced him to 168 months in prison and five years of supervised

release. Olvera appeals, challenging the district court’s determination of his

sentence and asserting that trial counsel rendered ineffective assistance. 

In his first point of error, Olvera contends that the district court failed to

make independent determinations of disputed issues of fact regarding the

United States Court of Appeals

Fifth Circuit

F I L E D

August 22, 2011

Lyle W. Cayce

Clerk

 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.

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No. 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. 2008). 

Although a district court must resolve disputes 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 presentence report (PSR), nor did he offer any evidence to rebut those

calculations. The district court was thus free to adopt the facts in the

PSR without further inquiry or findings. See United States v. Rodriguez, 602

F.3d 346, 363 (5th Cir. 2010). Olvera has demonstrated no error, 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 (2005), the Supreme Court

remedied the Sixth Amendment error resulting from judicial factfinding under

the Guidelines by excising statutory provisions making the Guidelines

mandatory and rendering 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 facts 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 reasonableness 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.

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