United States v. Recio-Vallejo , 101 F. App'x 458 ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41668
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN RECIO-VALLEJO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-612-ALL
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Recio-Vallejo (“Recio”) appeals his guilty plea
conviction and 46-month sentence for illegal reentry into the
United States following an aggravated felony conviction in
violation of 8 U.S.C. § 1326. For the first time on appeal,
Recio argues that the district court erred in assigning a
criminal history point for his sentence for reckless driving.
Recio contends that, had his criminal history score been
*
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this opinion should not be published and is not precedent except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. 03-41668
-2-
correctly determined, he would have been in Criminal History
Category II, rather than in Category III.
Because the issue was not raised in the district court,
this court’s review is for plain error only. See United States
v. Olano, 507 U.S. 725, 732 (1993); FED. R. CRIM. P. 52(b). When
reviewing for plain error in the sentencing context, “this court
has concluded that if the trial judge, on remand, could reinstate
the same sentence, it will uphold the sentence imposed despite
the trial court’s error.” United States v. Leonard, 157 F.3d
343, 346 (5th Cir. 1998). Recio admits that, even if his
criminal history score were corrected, the district court could
impose the same 46-month sentence on remand. Accordingly, Recio
has not shown plain error. See id.
Recio acknowledges that Leonard continues to be binding
precedent in the sentencing guidelines context, but he contends
that this court should apply the presumed-prejudice approach
adopted in United States v. Reyna, 358 F.3d 344 (5th Cir.)
(en banc), cert. denied, S. Ct. , 2004 WL 316508 (May 24,
2004). One panel may not overrule the decisions of another
without en banc consideration or an intervening Supreme Court
opinion. See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir.
1997). The en banc decision in Reyna did not extend the
presumption of prejudice to errors that result in the application
of an incorrect guideline range. See Reyna, 358 F.3d at 353.
No. 03-41668
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For the first time on appeal, Recio argues that the
sentencing provisions of 8 U.S.C. § 1326(b)(1) & (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Recio acknowledges that his 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).
AFFIRMED.