United States v. Pereyra-Ramirez , 350 F. App'x 927 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2009
No. 09-10047
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAYMUNDO PEREYRA-RAMIREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:08-CR-46-ALL
Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Raymundo Pereyra-Ramirez appeals his conviction by a jury of possession
with intent to distribute cocaine. He asserts that the judgment, which reflects
that his conviction was pursuant to 21 U.S.C. § 841(a)(1) and (b)(1)(A), is
erroneous because the jury was instructed that it had to find that the relevant
drug quantity was 500 grams or more of cocaine, which is the base quantity for
a conviction under § 841(b)(1)(B). Pereyra-Ramirez does not challenge the 121-
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-10047
month sentence that he received, but he contends that this court should amend
the judgment to reflect a conviction under the lesser subsection. Pereyra-
Ramirez concedes that he did not object to the jury instructions or to the entry
of the judgment in the district court. We therefore review his claims for plain
error only. To show plain error, Pereyra-Ramirez must show an error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). If Pereyra-Ramirez makes such a showing,
this court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.We have reviewed the record and conclude that Pereyra-Ramirez has not
made the requisite showing. Even if there is clear or obvious error in the entry
of the subsection in the judgment, Pereyra-Ramirez has not established that any
such error “affected the outcome of the district court proceedings.” Puckett, 129
S. Ct. at 1429 (internal quotation marks and citation omitted). Thus, he has not
shown that the error had an effect on his substantial rights. See id. The
judgment of the district court is AFFIRMED.
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