* 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that this opinion should not be published and is not precedent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. 01-50793

c/w No. 01-50807

c/w No. 01-50808

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICKEY PADILLA,

Defendant-Appellant.

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

Appeals from the United States District Court

for the Western District of Texas

USDC No. A-01-CR-77-ALL-SS

USDC No. A-96-CR-2-ALL-SS

USDC No. A-94-CR-150-2-SS

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

September 27, 2002

Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.

PER CURIAM:*

Rickey Padilla, currently federal prisoner # 11398-075,

appeals his guilty-plea conviction and sentence for distribution

of methamphetamine (the drug case) and the revocation of

supervised release on his convictions for being a felon in

possession of a firearm (the firearm case) and for escape (the

escape case). He asserts that the Government breached the plea
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agreement in the drug case by allowing him to be sentenced for

relevant conduct. He has not shown that his interpretation of

the plea agreement was “reasonable.” See United States v. Cantu,

185 F.3d 298, 304 (5th Cir. 1999).

Padilla maintains that the superseding information in the

drug case is invalid because it fails to list essential elements

of the offense. The information fairly informed Padilla of the

charges against him and is sufficient to bar future prosecution

for the same offense. United States v. Garrett, 984 F.2d 1402,

1415 (5th Cir. 1993). A failure to allege drug quantity in the

charging instrument does not divest the district court of

jurisdiction in the case. United States v. Longoria, 298 F.3d

367, 372 (5th Cir. 2002). The failure to allege a penalty

provision does not in itself deprive the trial court of

jurisdiction to sentence the defendant. See United States v.

Cooper, 274 F.3d 230, 235-36, 241 (5th Cir. 2001).

Padilla maintains that the district court considered

relevant conduct in sentencing him in the drug case, in violation

of Apprendi v. New Jersey, 530 U.S. 466 (2000). As long as the

sentence does not exceed the statutory maximum, the district

court is authorized to determine the relevant drug quantity for

Sentencing Guideline purposes. United States v. Doggett, 230

F.3d 160, 166 (5th Cir. 2000), cert. denied, 531 U.S. 1177

(2001). As Padilla’s sentence did not exceed the statutory
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maximum, the district court did not plainly err in imposing

sentence. United States v. Vasquez-Zamora, 253 F.3d 211, 213

(5th Cir. 2001).

Padilla also contends that the district court failed to make

specific factual findings to the relevant conduct in the drug

case, despite his objection. Because Padilla made only an

unsworn objection to the presentence report (PSR), the district

court could rely on the PSR as evidence at sentencing. See

United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992);

United States v. Alford, 142 F.3d 825, 831-32 (5th Cir. 1998).

Padilla maintains that he received ineffective assistance in

the drug case because counsel failed to investigate the relevant

case law pertaining to the breach of the plea agreement and his

excessive sentence. The record has not been adequately developed

to consider these ineffective-assistance claims on direct appeal. 

See United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). 

Padilla asserts that the district court erred in running the

sentences to be served upon revocation of supervised release

consecutively. A district court has discretion to decide whether

to run such terms consecutively or concurrently. United States

v. Gonzalez, 250 F.3d 923, 927 (5th Cir. 2001). Padilla has not

shown that the district court abused its discretion.

Padilla contends that the district court erred in

reinstating the original indictment in the firearm case after an
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earlier conviction in the case was overturned in a 28 U.S.C.

§ 2255 motion. As Padilla never challenged the validity of the

reinstatement on direct appeal of that case or through a

collateral challenge, he may not do so now through his appeal of

the revocation of supervised release. United States v. Moody,

277 F.3d 719, 720 (5th Cir. 2001).

Padilla contends that the district court erred in revoking

his term of supervised release on the escape case because the

three-year period had run at the time he committed the offense

giving rise to the revocation. The supervised-release term did

not run while Padilla was in prison on the firearm charge. 18

U.S.C. § 3624(e). Padilla’s conviction and sentences are

AFFIRMED.