                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
          IN THE UNITED STATES COURT OF APPEALS 27, 2007
                                               July
                   FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                                                                           Clerk


                                No. 06-10642
                              Summary Calendar


UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

DANIEL GARCIA, also known as D

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:05-CR-75-4


Before KING, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
      Daniel Garcia appeals his guilty-plea conviction and sentence for
conspiracy to distribute and possess with intent to distribute five kilograms or
more of cocaine in violation of 21 U.S.C. § 846. He contends that his guilty plea
was not knowing and voluntary because the district court failed to correctly
inform him of the applicable minimum and maximum penalties. Where, as here,




      *
       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should not be published and is not precedent except under the limited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. 06-10642

a defendant does not object to Fed. R. Crim. P. 11 errors in the district court, this
court reviews for plain error. United States v. Vonn, 535 U.S. 55, 59 (2002).
      Although the initial rearraignment transcript filed with this court shows
that Garcia was incorrectly advised of a maximum possible penalty of four years
of imprisonment, the amended rearraignment transcript shows that Garcia was
correctly informed that he was subject to a mandatory minimum penalty of 10
years of imprisonment and a maximum possible penalty of life imprisonment.
See 21 U.S.C. § 841(b)(1)(A)(ii)(II). Therefore, Garcia has not shown error, plain
or otherwise.
      Garcia also contends that his Fifth and Sixth Amendment rights were
violated when the district court enhanced his sentence beyond the maximum
authorized by the facts charged in the indictment, admitted by him, or found by
a jury beyond a reasonable doubt. Specifically, he argues that the district court
erred when it enhanced his sentence pursuant to U.S.S.G. § 2D1.1(d)(1) based
on its finding, by a preponderance of the evidence, that he murdered Juan Silva
Barrera. Because this issue is raised for the first time on appeal, review is for
plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
      Garcia was sentenced in June 2006, after the issuance of United States v.
Booker, 543 U.S. 220 (2005). Thus, the district court’s determination, under an
advisory Guidelines scheme, that Garcia murdered Barrera did not violate
Garcia’s Sixth Amendment right to a jury trial. See Mares, 402 F.3d at 519.
      Finally, Garcia contends that the 420-month sentence was unreasonable
because it was based on a judge-found fact and the district court failed to
consider the 18 U.S.C. § 3553(a) factors. The record reflects that the district
court considered Garcia’s objections and testimony, the recommendations of the
presentence report, the applicable guideline range, and the § 3553(a) factors.
Because the district court exercised its discretion to impose a sentence within a
properly calculated guideline range, the sentence was presumptively reasonable
and this court may infer that the district court considered all the factors for a

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                                  No. 06-10642

fair sentence set forth in the Guidelines. Rita v. United States, 127 S. Ct. 2456,
2462, 2468 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006);
Mares, 402 F.3d at 519. This court has examined the record and concludes that
the sentence imposed by the district court was reasonable.
      Accordingly, the district court’s judgment is AFFIRMED.




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