IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-50150 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN JOSE MACIAS-CASTRO, also known as Martin Sotel-Hernandez, also known as Rogelio Martinez-Lopez,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas USDC No. A-97-CR-106-All _________________________________________________________________

November 25, 1998

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Juan Jose Macias-Castro appeals his conviction and sentence

for being a previously deported alien who reentered the United

States without permission and for falsely representing himself to

be a United States citizen. the primary issue at trial was where

Macias was born. The evidence, viewed in the light most favorable

to the jury’s verdict, was sufficient to allow a rational trier of

fact to conclude, beyond a reasonable doubt, that Macias was born

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. in Mexico. See United States v. Resio-Trejo,

(5th

Cir. 1995); United States v. Martinez,

(5th

Cir. 1992).

The district court did not abuse its discretion in denying

Macias’s motion for a new trial. Macias did not meet his burden of

showing that the whereabouts of his father could not have been

ascertained prior to trial with due diligence. United States v.

Freeman,

(5th Cir. 1996); United States v.

Mulderig,

(5th Cir. 1997).

The district court did not commit plain error in raising

Macias’s base offense level by 16 levels because of his previous

conviction for retaliation. United States v. Calverley,

(5th Cir. 1994)(en banc). Macias argues, without

support, that he did not receive a one-year sentence for the crime

and that it thus did not meet the definition of an aggravated

felony as set forth in

(a)(43)(F). Macias’s

presentence report (“PSR”) indicates that Macias served two years

for the offense. The PSR is considered reliable and may be

considered as evidence by the court when making sentencing

determination. United States v. Gonzalez,

(5th

Cir. 1996); United States v. Lghodaro,

(5th

Cir. 1992).

This court does not consider Macias’s arguments that his

sentence was imposed in violation of the Ex Post Facto Clause and

that the government presented improperly cumulative evidence

2 because these arguments were raised for the first time in Macias’s

reply brief. See United States v. Jackson,

, 1340 n.7

(5th Cir. 1995).

A F F I R M E D.

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