                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                           May 10, 2006

                                                              Charles R. Fulbruge III
                                                                      Clerk
                            No. 05-40608
                          Summary Calendar


                      UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                   versus

                          REGINALDO VALDEZ,

                                                  Defendant-Appellant.


          Appeal from the United States District Court
                for the Eastern District of Texas
                         (4:04-CR-122-1)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Reginaldo Valdez was convicted in a bench trial of possessing

approximately   435   grams   of     methamphetamine   with    intent     to

distribute, in violation of 21 U.S.C. § 841, and of being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g).           He

received concurrent sentences of life and 120 months in prison,

respectively.   The life sentence was imposed pursuant to 21 U.S.C.

§ 841(b)(1)(A) (requiring a mandatory life sentence where the

defendant has committed two prior drug felonies).



     *
       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this opinion should not be published and is not precedent except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.
     Valdez asserts the evidence was insufficient to support his

drug-trafficking   conviction   because   it   did   not   establish   he

possessed 435 grams of pure methamphetamine.         A drug quantity in

the indictment is needed if the Government is seeking to enhance a

sentence pursuant to § 841(b)(1)(A). See United States v. Doggett,

230 F.3d 160, 164-65 (5th Cir. 2000), cert. denied, 531 U.S. 1177

(2001).    Pursuant to the standard of review for a bench trial,

Valdez cannot establish that no “rational trier of fact could have

found that the evidence established guilt beyond a reasonable

doubt”.    United States v. Shelton, 325 F.3d 553, 557 (5th Cir.),

cert. denied, 540 U.S. 916 (2003).         To the extent Valdez is

asserting that the difference between the allegations in the

indictment and the proof at trial constituted a fatal variance, any

such error was harmless.     See United States v. Thomas, 12 F.3d

1350, 1357 (5th Cir.), cert. denied, 511 U.S. 1095 (1994).

     Valdez contends that the district court denied him due process

by failing, before sentencing, to conduct the colloquy required by

21 U.S.C. § 851(b) (requiring the district court to ask the

defendant whether he affirms or denies that he has been previously

convicted and to inform him any subsequent challenge to these

convictions may not be raised post-sentencing). Because he did not

raise this claim in the district court, we review only for plain

error.    United States v. Thomas, 348 F.3d 78, 86 (5th Cir. 2003),

cert. denied, 540 U.S. 1207 (2004).       Even if error is presumed,


                                  2
Valdez has failed to establish it affected his substantial rights.

See United States v. Fragoso, 978 F.2d 896, 902-03 (5th Cir. 1992),

cert. denied, 507 U.S. 1012 (1993).

     Valdez also asserts that § 851(b), (c)(2), and (e) (defendants

seeking to challenge a prior conviction on constitutional grounds

must do so with particularity prior to sentencing, showing by a

preponderance of the evidence any issue of fact, or else the claim

is waived; any convictions older than five years may not be

challenged) violate the Suspension Clause, U.S. CONST. art. I, § 9,

cl. 2, because they limit a defendant’s ability to collaterally

attack his prior convictions.       He cannot establish that these

limitations in the avenues of relief constitute a violation of the

Constitution.   See, e.g., Felker v. Turpin, 518 U.S. 651, 664

(1996)(limiting successive habeas applications does not violate

Suspension Clause).

                                                       AFFIRMED




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