United States v. Bert

83 F. App'x 202

Opinion

MEMORANDUM

Footnotes

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Lamance Cookie Bert seeks reversal of the district court’s judgment sentencing him to 240 months of imprisonment with three concurrent terms of ten years of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Bert relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in his contention that the district court erred when it enhanced his sentence based on a prior conviction not charged in an indictment or proved beyond a reasonable doubt to a jury. However, as Bert concedes, we rejected the same argument in United States v. Pacheco-Zapeda, 234 F.3d 411, 414 (9th Cir.2001).

Bert also contends that the district court erred in imposing ten-year periods of supervised release for counts two and three. He contends that the required “term of supervised release of at least 6 years” for count two, and “at least 8 years” for count three, under 21 U.S.C. § 841(b)(1), are limited by U.S.S.G. § 5D1.2(b), which reads: “Except as otherwise provided, the term of supervised release imposed shall not be less than any statutorily required term of supervised release.” Bert contends that U.S.S.G. § 5D1.2(b) only permits imposition of the shortest possible terms allowable for counts two and three under § 841(b)(1). However, the “statutorily required term” is “at least 6 years” for count two and “at least 8 years” for count three. We will not read U.S.S.G. § 5D1.2(b) in a way that removes the words “at least” from § 841(b)(1). See United States v. Garcia, 112 F.3d 395, 398 (9th Cir.1997) (adopting United States v. Eng, 14 F.3d 165, 172-73 (2d Cir.1994), to hold that the required supervised release term of “at least three years” under § 841(b)(1)(C) was not limited to only three years by the general maximum term of supervised release imposed under 18 U.S.C. § 3583(b)(2)).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.