United States v. Salinas
310 F. App'x 632
5th Cir.
2009
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Docket

UNITED STATES of America, Plaintiff-Appellee v. Margarito MUNOZ-ASTELLO, Defendant-Appellant.

No. 08-50143

United States Court of Appeals, Fifth Circuit.

Feb. 11, 2009.

311 Fed. Appx. 632

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Margarito Munoz-Astello appeals his guilty plea conviction and sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326. He argues (1) that the district court plainly erred in treating his federal drug conviction as a “drug trafficking crime” under U.S.S.G. § 2L1.2; (2) that his case should be remanded so the district court can consider the disparity created by early disposition programs; (3) that his sentence violates his equal protection rights; and (4) that the district court plainly erred in ordering that his sentence be served consecutively to an unimposed state sentence. The Government has moved to supplement the record and for summary affirmance, or, in the alternative, for an extension of time to file an appellate brief. The Government‘s unopposed motion to supplement the record with the factual resume for Munoz-Astello‘s prior drug conviction under 21 U.S.C. § 841(a)(1) is granted.

Munoz-Astello‘s first appellate argument is without merit. A comparison of the statute and Guideline at issue shows that a conviction under § 841(a)(1) qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A)(i). See § 841(a)(1); § 2L1.2, comment. (n. 1(B)(iv)). Moreover, as Munoz-Astello concedes, his last three appellate arguments are foreclosed by our precedent. See , petition for cert. filed (July 2, 2008) (No. 08-5226); , petition for cert. filed (June 30, 2008) (08-5101); , (abrogation on other grounds recognized, ). Munoz-Astello raises his last three arguments solely to preserve them for further review.

Accordingly, the district court‘s judgment is AFFIRMED. The Government‘s motions to supplement the record and for summary affirmance are GRANTED. The Government‘s alternative motion for an extension of time to file an appellate brief is DENIED as MOOT.

UNITED STATES of America, Plaintiff-Appellee v. Joel SALINAS, Defendant-Appellant.

No. 07-40231

United States Court of Appeals, Fifth Circuit.

Feb. 11, 2009.

311 Fed. Appx. 633

Before DAVIS, GARZA, and PRADO, Circuit Judges.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, Patricia Cook Profit, Federal Public Defender‘s Office, McAllen, TX, for Plaintiff-Appellee. Victoria K. Guerra, McAllen, TX, for Defendant-Appellant.

PER CURIAM:*

Joel Salinas pleaded guilty to possession with intent to distribute more than five kilograms of cocaine and was sentenced to a term of imprisonment of 168 months. On direct appeal, he argued that he was sentenced in violation of because the district court determined that he was accountable for the equivalent of 126,000 kilograms of marijuana, a fact not admitted by Salinas nor found by a jury. This court determined that the district court‘s factual determination concerning the drug amount was made in violation of Booker and that the Government had not met its burden of establishing, beyond a reasonable doubt, that the error was harmless. See .

Following the remand, Salinas argued that the district court should reconsider its determination concerning the drug amount for which he was held accountable and also reconsider the scope of his relevant conduct. Salinas conceded that his base offense level would remain the same if the district court accepted his argument concerning the amount of drugs attributed to him. Thus, any error with respect to the district court‘s drug quantity calculation was harmless error. See .

Salinas argues, however, that a favorable ruling on his relevant conduct argument would make him eligible for the application of the safety valve provision. The Government argues that the safety valve issue was not within the scope of this court‘s mandate.

Salinas did not appeal the district court‘s denial of his request for the application of the safety valve provision, which he made at his initial sentencing. Because Salinas did not challenge the safety valve ruling in his previous appeal, he waived that issue and it was beyond the scope of the mandate ordering the resentencing. See .

Nor has Salinas shown that the safety valve issue falls within any of the exceptions to the mandate rule. Salinas did not provide any substantially different evidence at the resentencing, did not point out any relevant change of law by a controlling authority, and did not show that the district court‘s determination of the safety valve issue was so clearly erroneous as to result in a manifest injustice. See .

Accordingly, Salinas‘s sentence is AFFIRMED.

Notes

*
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. 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.