United States v. Peralta-Rosa , 256 F. App'x 678 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 3, 2007
No. 06-51662
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SONIA YOLANDA PERALTA-ROSA, also known as Sonia Peralta Rosa
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-1124-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Sonia Yolanda Peralta-Rosa pleaded guilty to illegal reentry in violation
of 8 U.S.C. § 1326(a). Peralta-Rosa argues that the district court plainly erred
in relying on hearsay statements in the presentence investigation report (PSR)
and its addendum (APSR) to enhance her base offense level under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on her prior conviction for assault with a deadly
weapon under § 245(a)(1) of the California Penal Code.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 06-51662
Because Peralta-Rosa did not object in the district court to the legal
sufficiency of the evidence to support the sentence enhancement, we review for
plain error. United States v. Ochoa-Cruz, 442 F.3d 865, 866-67 (5th Cir. 2006).
The district court’s reliance on the PSR, APSR, and the abstract of judgment was
clear error. See Shepard v. United States, 544 U.S. 13, 15-16 (2005); Ochoa-
Cruz, 442 F.3d at 867; United States v. Gutierrez-Ramirez, 405 F.3d 352, 357-59
(2005). However, the error did not affect Peralta-Rosa’s substantial rights. To
show that the error affected her substantial rights, Peralta-Rosa must show a
reasonable probability that, but for the error, she would have received a lesser
sentence. Ochoa-Cruz, 442 F.3d at 867.
Peralta-Rosa does not dispute that she was convicted under § 245(a)(1) of
the California Penal Code. Nor does she dispute that her conviction under that
statute -- assault with a deadly weapon -- constitutes a crime of violence for
purposes of sentence enhancement under this court’s precedent. See United
States v. Sanchez-Ruedas, 452 F.3d 409, 414 (5th Cir. 2006). Without at least
arguing that her conviction was not a crime of violence under § 2L1.2, Peralta-
Rosa cannot show that she would have received a lesser sentence. Ochoa-Cruz,
442 F.3d at 867.
Peralta-Rosa also argues that her trial counsel was ineffective at
sentencing for failing to object to the sufficiency of the Government’s evidence
regarding the enhancement. This court generally will not consider claims of
ineffective assistance of counsel on direct appeal except in those “rare cases
where the record allowed [this court] to evaluate fairly the merits of the claim.”
United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir. 1987). This is not one
of those cases.
Peralta-Rosa also challenges the constitutionality of 8 U.S.C. § 1326(b)’s
treatment of prior felony and aggravated felony convictions as sentencing factors
rather than elements of the offense that must be found by a jury. Peralta-Rosa’s
constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523
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No. 06-51662
U.S. 224, 235 (1998). Although she contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), we
have repeatedly rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.
2005). Peralta-Rosa properly concedes that her argument is foreclosed in light
of Almendarez-Torres and circuit precedent, but she raises it here to preserve it
for further review.
Accordingly, without prejudice to Peralta-Rosa’s right to file a motion
pursuant to 28 U.S.C. § 2255 with respect to her ineffective assistance of counsel
claim, the judgment of the district court is AFFIRMED.
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