* 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that this opinion should not be published and is not precedent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. 01-21211

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAFAEL ACEVEDO-HERNANDEZ, also known as Rafael Acevedo,

also known as David Castro-Paz,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-01-CR-117-ALL

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

December 12, 2002

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Rafael Acevedo-Hernandez (“Acevedo”) appeals the 37-month

sentence imposed following his guilty plea to a charge that he

violated 8 U.S.C. § 1326 by illegally reentering the United

States after having been deported following an aggravated felony

conviction. Acevedo first argues that the district court’s

failure to determine that he and his counsel had read and

discussed the presentence report (PSR) was a violation of
No. 01-21211

-2-

FED. R. CRIM. P. 32(c)(3)(A) which constituted plain error. As

Acevedo acknowledges, in United States v. Esparza-Gonzalez,

268 F.3d 272, 273-74 (5th Cir. 2001), cert. denied, 122 S. Ct.

1547 (2002), this court rejected the suggestion that it should

treat a Rule 32(c)(3)(A) error “as a structural defect,

requiring automatic reversal,” and held that where an issue of

noncompliance with Rule 32 was not raised in the district court,

this court could “correct the error only if the error was plain

and affected the applicants’ substantial rights.” EsparzaGonzalez, 268 F.3d at 273-74. 

Acevedo attempts to meet this difficult standard by arguing

that it can be logically inferred, from the fact that arguments

at his sentencing hearing focused on his criminal history,

that the district court’s selection of the maximum term of

imprisonment under the Sentencing Guidelines was influenced by

his criminal history. Acevedo argues that the failure of the

district court to ascertain that he had read and reviewed with

counsel the PSR discussing his criminal history affected his

substantial rights. 

Acevedo does not contend that he did not read and discuss

his PSR with defense counsel and does not assert that the

criminal history in the PSR contained factual inaccuracies that

he could have challenged and, if corrected, would have resulted

in his receiving a lesser sentence. “We must uphold a sentence

reviewed for plain error if the court could lawfully and
No. 01-21211

-3-

reasonably reinstate it on remand.” United States v. Ravitch,

128 F.3d 865, 869 (5th Cir. 1997). Acevedo has failed to make

the showing required under the plain error standard. See

Esparza-Gonzalez, 268 F.3d at 273-74; Ravitch, 128 F.3d at 869. 

This is a frivolous issue. 

Acevedo also argues that the sentencing provisions of 

8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). He concedes that

this argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but he seeks to preserve the

issue for Supreme Court review. 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), cert.

denied, 531 U.S. 1202 (2001). This court must follow the

precedent set in Almendarez-Torres “unless and until the Supreme

Court itself determines to overrule it.” Dabeit, 231 F.3d at 984

(internal quotation and citation omitted).

AFFIRMED.