           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 10, 2009
                                     No. 08-31040
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

JUAN JOEL MARTINEZ-HERNANDEZ

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:08-CR-106-1


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
       Juan Joel Martinez-Hernandez pleaded guilty to illegal reentry following
deportation.      The presentence investigation report (PSR) recommended
Martinez’ advisory guidelines range to be 15 to 21 months of imprisonment. At
sentencing, the district court upwardly departed and imposed a 36-month
sentence. Martinez did not object, however, to that departure.
       Citing Shepard v. United States, 544 U.S. 13 (2005) (limiting inquiry
under the ACCA for determining whether a guilty plea admitted the elements

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-31040

of the generic offense to: the terms of the charging document, plea agreement,
or transcript of colloquy between judge and defendant), Martinez contends that
the district court plainly erred because it “did not conduct an independent review
of either the charging documents, plea agreements, minutes or transcripts
relative to” the existence of his prior illegal-entry convictions. He asserts that
the district court erroneously relied exclusively on the PSR and the 18 U.S.C.
§ 3553 factors.
      As Martinez acknowledges, review is only for plain error. See United
States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.), cert. denied, 129 S. Ct.
625 (2008). To establish reversible plain error, Martinez must show: (1) there
was error; (2) it was plain (clear or obvious); and (3) it affected his substantial
rights.   E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert.
denied, 129 S. Ct. 962 (2009). If reversible plain error is established, we still
have discretion to correct such error and, generally, will do so only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
      In district court, Martinez failed to offer any rebuttal evidence to the facts
contained in the PSR, including the existence of his three prior illegal-entry
convictions. Here, Martinez does not challenge the district court’s reasoning for
the upward departure, including the existence of his prior convictions.
      “Shepard does not apply when determining whether the Government has
satisfied its burden of proof as to the existence of a prior conviction”. United
States v. Neri-Hernandes, 504 F.3d 587, 591 (5th Cir. 2007). Moreover, Martinez
admitted to the existence of his prior convictions. See United States v. Mendoza-
Sanchez, 456 F.3d 479, 483 (5th Cir. 2006). In sum, Martinez has failed to show
the district court plainly erred. See Puckett v. United States, 129 S. Ct. 1423,
1429 (2009).
      AFFIRMED.




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