United States v. Garcia-Delgado

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11533
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL GARCIA-DELGADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:00-CR-49-ALL
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June 18, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Miguel Garcia-Delgado (Garcia) appeals his guilty plea
conviction and sentence for illegal reentry into the United
States after having been deported. 8 U.S.C. § 1326. Garcia
contends that a 16-level increase in his offense level was
unwarranted because the Presentence Report (PSR) provided
inadequate support for the district court’s finding that Garcia
had a prior conviction for smuggling aliens for profit. See

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No. 01-11533
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United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993);
U.S.S.G. § 2L1.2(b)(1)(A)(vii) (Nov. 2001).
The PSR’s information was based on facts contained in the
PSR from Garcia’s prior conviction which established that the
smuggling was done for profit. Thus, the PSR’s facts in the
present case were not like the “[b]ald, conclusionary statements”
we condemned in Elwood. Although Garcia objected to the PSR, he
did not carry his burden of presenting rebuttal evidence to show
that the PSR is inaccurate. See United States v. Ayala, 47 F.3d
688, 690 (5th Cir. 1995). Therefore, the district court was
entitled to rely on the facts in the PSR. Id.
Garcia argues that the district court lacked jurisdiction to
convict or sentence him for aggravated-felony illegal reentry
because his indictment did not allege the existence of the prior
aggravated-felony conviction. He concedes that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). He seeks only to preserve the issue for possible Supreme
Court review in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 490. This claim provides no basis for
relief.
Garcia’s conviction and sentence are AFFIRMED.

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