USA v. Lorena Porras-Rascon, No. 09-50164 (5th Cir. 2009)

Annotate this Case

Download PDF

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-50164 Summary Calendar November 11, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. LORENA PORRAS-RASCON, Lorena Porras De Ruiz, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-2797-1 Before REAVLEY, GARZA, and OWEN, Circuit Judges. PER CURIAM:* Lorena Porras-Rascon (Porras) appeals the sentence imposed following her guilty plea to illegal reentry. She argues for the first time on appeal that the district court improperly enhanced her sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) by relying solely on the presentence report s characterization of her prior 21 U.S.C. § 952 conviction for importation of marijuana as a drug trafficking crime and its own recollection of that conviction. Because Porras did * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR.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. 09-50164 not object to the § 2L1.2 enhancement on this basis in the district court, her argument is reviewed for plain error only. See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). Porras, however, has not established reversible plain error because she has demonstrated no prejudice from the district court s alleged error; thus, she cannot show that her substantial rights have been affected. See id. at 520-21. In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Porras 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. This argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998); United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007). AFFIRMED. 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.