United States v. Pasillas-Bonilla

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 11, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50825
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GERARDO PASILLAS-BONILLA, also known as Gerardo
Pasillas-Bonilla,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-61-1
--------------------
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Gerardo Pasillas-Bonilla (Pasillas) appeals his
convictions and sentences for conspiracy to import more than 50
kilograms of marijuana, conspiracy to possess with intent to
distribute more than 50 kilograms of marijuana, and illegal
reentry after deportation.
Pasillas first challenges the constitutionality of 8 U.S.C.
§ 1326(b)’s treatment of prior felony and aggravated felony
convictions. Pasillas’s constitutional challenge is foreclosed

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No. 06-50825
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by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court now would
overrule Almendarez-Torres, we have repeatedly rejected such
arguments on the basis that Almendarez-Torres remains binding.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),
cert. denied, 126 S. Ct. 298 (2005). Pasillas properly concedes
that his argument is foreclosed in light of Almendarez-Torres and
circuit precedent, but he raises it here to preserve it for
further review.
Pasillas also argues that the district court violated
FED. R. CRIM. P. 32 by not making a specific finding on his
objection to an enhancement for his role in the offense.
Rule 32 requires the sentencing court to make findings regarding
controverted facts in the PSR, or to state that those facts will
not be taken into account at sentencing. The district court
satisfied the mandate of Rule 32 when it overruled the objection
and adopted the PSR because the findings in the PSR were “so
clear” as not to leave this court to “second guess” the basis for
the district court’s decision. United States v. Carreon, 11 F.3d
1225, 1230-31 (5th Cir. 1994).
AFFIRMED.

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