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

                                                FILED
                                                                 April 30, 2009
                                No. 08-40743
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

HILARIO SOTO-HERNANDEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 4:07-CR-182-1


Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
      Hilario Soto-Hernandez pleaded guilty to illegal reentry after deportation
in violation of 8 U.S.C. § 1326 and was sentenced to 57 months of imprisonment
and three years of supervised release. Soto-Hernandez argues for the first time
on appeal that our opinion in United States v. Rojas-Luna, 522 F.3d 502,504-06
(5th Cir. 2008), compels us to vacate his sentence. In Rojas-Luna, we held that
the district court’s use of the fact of his 2006 removal to increase his sentence



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-40743

beyond the statutory maximum sentence allowed under § 1326(a) was reversible
plain error because the fact of the 2006 removal had not been admitted by Rojas-
Luna or proven to a jury beyond a reasonable doubt. 522 F.3d at 506-07. We
determined that the only evidence in the record to show when the defendant was
removed was an unsupported statement in the presentence report (PSR) and
that there was no evidence in the record that the defendant had agreed to the
accuracy of this fact in the PSR. Id. at 507.
      The facts in Soto-Hernandez’s case are distinguishable. Soto-Hernandez
affirmatively admitted in his statement of facts in support of his plea agreement
and in his objections to the PSR that he was deported on December 15, 2003. He
confirmed this fact at his sentencing hearing. “[R]eliance on a defendant’s
admission of facts that are contained in the PSR is permissible.” United States
v. Ramirez, 557 F.3d 200, 204 (5th Cir. 2009). The district court did not plainly
err in relying on Soto-Hernandez’s admission that he was deported on December
15, 2003     in    applying   U.S. Sentencing     Guidelines   Manual (U.S.S.G.)
§ 2L1.2(b)(1)(a)(ii).
      Soto-Hernandez argues that his sentence of Texas deferred adjudication
should not be treated as a final conviction for purposes of U.S.S.G.
§ 2L1.2(b)(1)(A). He notes that the issue is foreclosed by Fifth Circuit precedent
and that he is raising the issue solely to preserve it for possible further review.
This issue is foreclosed by United States v. Valdez-Valdez, 143 F.3d 196, 200-01
(5th Cir. 1998).
      AFFIRMED.




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