United States v. De La Torre , 75 F. App'x 923 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 8, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-41711
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO DE LA TORRE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-623-1
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Antonio De La Torre pleaded guilty to count one of an
indictment charging him for transporting an undocumented alien
within the United States by means of a motor vehicle for private
financial gain. He was sentenced at the top of the guideline
imprisonment range to a 24-month term of imprisonment and to a
three-year period of supervised release. De La Torre has
appealed his conviction and sentence.
*
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this opinion should not be published and is not precedent except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. 02-41711
-2-
De La Torre contends that his sentence should be vacated
because the district court erred in calculating his criminal
history score. Because this question has been raised for the
first time on appeal, we review it for plain error. See United
States v. Olano, 507 U.S. 725, 732 (1993).
The district court assessed three criminal history points,
under U.S.S.G. §§ 4A1.1(c) and 4A1.1(d), because De La Torre had
a 1995 conviction for burglary of a habitation and because he was
on probation at the time of that offense. The parties agree that
it was clear error to assess criminal history points for this
conviction because the offense occurred before De La Torre was
eighteen years old and more than five years before the instant
offense. See U.S.S.G. § 4A1.2(d)(2). They agree that De La
Torre should have been classified as having a criminal history
category II, instead of III, and that his guideline imprisonment
range should have been 15-21 months, instead of 18-24 months.
Because the district court clearly erred and because De La
Torre’s substantial rights were affected, we VACATE the sentence
and REMAND for resentencing. See United States v. Aderholt, 87
F.3d 740, 744 (5th Cir. 1996).
De La Torre contends that his guilty plea should be vacated
because the district court erred in delegating to the magistrate
judge the duty to conduct the FED. R. CRIM. P. 11 plea colloquy,
which he contends is statutorily and constitutionally
impermissible. De La Torre concedes that these issues have been
No. 02-41711
-3-
resolved contrary to his position in United States v. Dees, 125
F.3d 261, 265–69 (5th Cir. 1997), and states that he has raised
the issues only to preserve them for possible further review.
The conviction is AFFIRMED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.