                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                      August 7, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-50504
                         c/w No. 05-51208
                         Summary Calendar


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                               versus

                     GUILLERMO GARCIA-DUARTE,

                                                 Defendant-Appellant.


           Appeal from the United States District Court
                 for the Western District of Texas
                          (3:04-CR-2202-2)
                         (3:04-CR-2684-ALL)


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     In this consolidated appeal, Guillermo Garcia-Duarte challenges

his guilty-plea convictions:    (1) for attempting to enter, and

entering, the United States without permission; and (2) for, on that

same day of illegal entry, conspiracy, importation, and possession

of 100 kilograms or more of marijuana.      The district sentenced

Garcia-Duarte to concurrent, 120-month terms of imprisonment for

each offense.



     *
        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this opinion should not be published and is not precedent except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.
       For the first time on appeal, Garcia-Duarte asserts the

district    court         erred   in   accepting       his    guilty    plea    to    the

illegal-reentry offense because the Government’s factual basis was

insufficient to support the required finding that he "entered" the

United States free from official restraint.                       He acknowledges our

review is only for plain error.                See United States v. Marek, 238

F.3d 310, 315 (5th Cir.), cert. denied, 534 U.S. 813 (2001).

       Although      an    illegal-entry       offense       is   comprised    of    both

physical presence in the United States and freedom from official

restraint, see United States v. Morales-Palacios, 369 F.3d 442, 446

(5th   Cir.),     cert.      denied,    543    U.S.    825    (2004),     we   decline,

especially      on    plain-error       review,       to   accept      Garcia-Duarte’s

assertion that the Border Patrol Agent’s viewing him through an

infrared unit constituted official restraint.                       Moreover, because

Garcia-Duarte does not contest the sufficiency of the factual basis

supporting his guilty plea with respect to his conviction for

attempted entry, we reject his contention that the Government’s

factual basis was insufficient to support that plea.                       See United

States v. Harvard, 103 F.3d 412, 420 (5th Cir.), cert. denied, 522

U.S. 824 (1997).

       Also for the first time on appeal, Garcia-Duarte asserts the

court erred in relying on the "hearsay statements" in the modified

presentence investigation report (PSR) to enhance his sentence for

the illegal-reentry offense, based on his having a prior felony



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drug-trafficking offense.      He does not challenge the fact of the

conviction; nor does he assert the conviction was not the kind that

could be used to support the enhancement.         Rather, he contends the

PSR’s   recitation   of   "second-hand"   facts    describing    the   prior

conviction is the "kind of proof" that the Supreme Court has found

inadequate to support a sentence enhancement. In support, he cites

Shepard v. United States, 544 U.S. 13 (2005) and Taylor v. United

States, 495 U.S. 575 (1990).

     In post-Shepard decisions, this court has continued to hold:

a district court may rely on information provided in the PSR in

making sentencing determinations; and it is the defendant’s burden

to show “the information in the PSR relied on by the district court

is materially untrue”.     United States v. Betancourt, 422 F.3d 240,

248 (5th Cir. 2005) (internal quotation omitted). As Garcia-Duarte

does not dispute the accuracy of the PSR’s recitation of his prior

offense, he has not shown error, plain or otherwise, in the

district court’s reliance on the PSR.          Further, because he was

subject   to   a   mandatory   minimum    sentence   of    120   months   of

imprisonment, he cannot demonstrate that the district court’s

error, if any, affected his substantial rights.           See United States

v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006).

     Garcia-Duarte’s constitutional challenge is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although he contends Almendarez-Torres was incorrectly decided and


                                    3
a majority of the Supreme Court would overrule it in the light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly

held it remains binding.   See United States v. Garza-Lopez, 410

F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

Garcia-Duarte concedes his claim is foreclosed in the light of

Almendarez-Torres and circuit precedent, but preserves it for

further review.

                                                    AFFIRMED




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