United States v. Monge-Anaya , 176 F. App'x 619 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40696
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWIN ARMANDO MONGE-ANAYA, also known as Lebin Artiaga-Anaya,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1766-ALL
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Edwin Armando Monge-Anaya (Monge) appeals his sentence imposed
after he pleaded guilty to illegal reentry after deportation in
violation of 8 U.S.C. § 1326(b)(2). Monge was sentenced to 50
months of imprisonment and three years of supervised release. He
asserts that the district court erroneously assigned him four
criminal history points for his 1995 and 1996 convictions because
he committed these offenses prior to his eighteenth birthday and he
*
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this opinion should not be published and is not precedent except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. 05-40696
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was not sentenced or confined for these sentences within the five-
year period preceding his commencement of the instant offense.
We review this issue under the plain error standard of review
because Monge raises this issue for the first time on appeal.
United States v. Olano, 507 U.S. 725, 731-32 (1993). In order to
show that the district court plainly erred in calculating his
criminal history score, Monge must show the existence of an error,
that the error was clear and obvious, and that the error affected
his substantial rights. Id. at 732-35. If these conditions are
met, then this court will reverse the error only if it seriously
affects the “fairness, integrity, or public reputation of judicial
proceedings.” Id. at 735-37.
Monge has not demonstrated error, plain or otherwise. The
district court relied on information contained in the Presentence
Report (PSR) regarding Monge’s reported dates of birth, which were
inconsistent, and his prior convictions. Information in a
PSR “generally bears sufficient indicia of reliability to be
considered as evidence” at sentencing in making factual
determinations under the Guidelines. United States v. Fitzgerald,
89 F.3d 218, 223 (5th Cir. 1996). When a district court has relied
on such PSR information, the defendant has the burden to show that
it “is materially untrue, inaccurate or unreliable.” United States
v. Floyd, 343 F.3d 363, 372 (5th Cir. 2003) (internal quotation
marks and citation omitted). Monge has not sustained his burden of
No. 05-40696
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showing that the district court considered untrue, inaccurate, or
unreliable information in imposing Monge’s sentence.
Monge also asserts that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional. Monge’s
constitutional challenge is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998). Although Monge 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.), cert. denied, 126 S. Ct. 298 (2005). Monge properly
concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
The district court’s judgment is AFFIRMED.