United States v. Betancourt-Rodriguez

51 F. App'x 735

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 26, 2002
• Docket: Nos. 01-30141, 01-30147; D.C. No. CR-98-00756-TSZ
• Status: Published

Opinion

MEMORANDUM

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Defendants’ convictions for conspiring to possess, with intent to distribute, 500 grams or more of cocaine-a lesser included offense of the crime charged in Count I, see Schmuck, v. United States, 489 U.S. 705, 715-16, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989)-were proper predicates for the substantive offense charged in Counts III and IV. See 18 U.S.C. § 924(c) (punishing “any person who, during and in relation to any ... drug trafficking crime ..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm”). There was thus no error, much less plain error. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

21 U.S.C. § 841(b)(1)(B) is not facially unconstitutional. See United States v. Buckland, 277 F.3d 1173, 1177 (9th Cir.2002) (en banc).

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.