     Case: 10-10885     Document: 00511543725         Page: 1     Date Filed: 07/19/2011




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

                                                                            FILED
                                                                            July 19, 2011
                                     No. 10-10885
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PEDRO MUNOZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-61-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Pedro Munoz pleaded guilty to illegal reentry into the United States
following deportation and was sentenced to a 60-month term of imprisonment,
which was above the Sentencing Guidelines range. He appeals the sentence,
contending that the district court violated his Fifth Amendment right against
self-incrimination and his Sixth Amendment right to counsel when it enchanced
the sentence based in part on domestic-abuse allegations in a case still pending
in state court.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-10885    Document: 00511543725       Page: 2   Date Filed: 07/19/2011

                                  No. 10-10885

      Constitutional claims are ordinarily reviewed de novo. United States v.
Romero-Cruz, 201 F.3d 374, 377 (5th Cir. 2000). However, the Government
contends that Munoz now advances an argument not presented in the district
court and therefore is limited to review for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009)             For the reasons
explained below, we conclude that the district court committed no error, plain
or otherwise.
      Subject to constitutional restraints, sentencing courts may “conduct an
inquiry broad in scope, largely unlimited either as to the kind of information
they may consider, or the source from which it may come.” Pepper v. United
States, 131 S. Ct. 1229, 1240 & n. 8 (2011) (internal quotation marks, bracketing,
and citation omitted). “[T]he Fifth Amendment is limited to prohibiting the use
of physical or moral compulsion exerted on the person asserting the privilege.”
South Dakota v. Neville, 459 U.S. 553, 562 (1983) (internal quotation marks and
citation omitted). In deciding whether the right against self-incrimination has
been violated, we review “the totality of the circumstances.”           Arizona v.
Fulminante, 499 U.S. 279, 285 (1991).
      Munoz’s own testimony was not his sole means of challenging the abuse
allegations and the proposed sentence enhancement. He had the right to put on
any rebuttal evidence that he thought proper. See United States v. Ford, 558
F.3d 371, 377 (5th Cir. 2009). This is not a case in which “the defendant had no
real choice but to testify.” United States v. Roberson, 872 F.2d 597, 611 (5th Cir.
1989).
      Munoz’s Sixth Amendment right-to-counsel claim is conclusory and
unsupported by legal analysis and citations to the record. See United States. v.
Charles, 469 F.3d 402, 408 (5th Cir. 2006). Because Munoz has not preserved
the issue whether his Sixth Amendment right to counsel was violated, we need
not consider it. See FED. R. APP. P. 28(a)(9).



                                        2
  Case: 10-10885    Document: 00511543725    Page: 3   Date Filed: 07/19/2011

                                No. 10-10885

      Munoz reiterates also his contention that the district court violated the
Sixth Amendment right to a jury trial by basing its above-guidelines-range
sentence on findings concerning his criminal history that had not been made by
a jury.   He correctly suggests, however, that this claim is foreclosed by
precedent. See United States v. Booker, 543 U.S. 220, 233 (2005).
      AFFIRMED.




                                      3
