     Case: 09-50652     Document: 00511112978          Page: 1    Date Filed: 05/17/2010




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

                                                  FILED
                                                                            May 17, 2010
                                     No. 09-50652
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JESUS MAURICIO CARREON, also known as Jesus Maricio Griego-Carreon,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:08-CR-1512-1


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Jesus Mauricio Carreon appeals the sentence imposed following his
convictions for illegal reentry, fraud in a citizenship proceeding, and making a
false statement under oath. He contends the district court: plainly erred by
relying solely on the presentence investigation report (PSR) to enhance his
sentence by 16 levels for a prior federal conviction for a crime of violence, under
Guideline § 2L1.2(b)(1)(A)(ii); and erred by treating that prior conviction as a
sentencing factor instead of an element of the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50652   Document: 00511112978 Page: 2         Date Filed: 05/17/2010
                                No. 09-50652

      Carreon did not object in district court to the 16-level enhancement.
Therefore, that issue is reviewed only for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192
(2009). Reversible plain error exists where a clear or obvious error affects the
defendant’s substantial rights. E.g., United States v. Baker, 538 F.3d 324, 332
(5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009); see also Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). Even then, we have discretion whether to
correct such an error and generally will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Baker, 538 F.3d
at 332.
      “[A] district court [is] not permitted to rely on a PSR’s characterization of
a defendant’s prior offense for enhancement purposes”. United States v. Garza-
Lopez, 410 F.3d 268, 274 (5th Cir. 2005). Here, however, the Government,
through an unopposed motion, has supplemented the record on appeal with
evidence corroborating the information in the PSR that the district court
erroneously relied on—specifically, the indictment and the judgment of
conviction for Carreon’s prior offense. See United States v. Fernandez-Cusco, 447
F.3d 382, 386 (5th Cir. 2006) (allowing unopposed supplementation of record on
appeal with, inter alia, charging document and judgment).
      That judgment of conviction shows Carreon was convicted of taking a
motor vehicle by force while possessing a firearm, in violation of 18 U.S.C.
§ 2119. Because these documents support the district court’s applying the 16-
level enhancement for the prior conviction, Carreon has not shown he would
have received a lower sentence but for the district court’s relying on the PSR.
See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006). Therefore,
Carreon has not shown that his substantial rights were affected and,
accordingly, has not established reversible plain error. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009).



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   Case: 09-50652   Document: 00511112978 Page: 3        Date Filed: 05/17/2010
                                No. 09-50652

      Carreon also challenges the constitutionality of 8 U.S.C. § 1326(b)’s
treatment of prior felony and aggravated felony convictions as sentencing factors
rather than elements of the offense that must be found by a jury. See generally
Apprendi v. New Jersey, 530 U.S. 466 (2000). As Carreon acknowledges, this
contention is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). See United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.
2007).
      AFFIRMED.




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