United States v. Delara-Velasco

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 01-50180
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50180 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS DELARA-VELASCO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-98-CR-375-1-DB -------------------- August 23, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

Jose Luis Delara-Velasco argues that the indictment charging

him with conspiracy to possess with intent to distribute

marijuana was fatally defective because it did not allege a

specific drug quantity that was involved in the offense. He also

argues that the maximum statutory penalty that could be imposed

was a term of imprisonment of one year under 21 U.S.C.

§ 841(b)(4) because his offense involved a small amount of

marijuana.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-50180 -2-

Delara stipulated in the plea agreement and swore under oath

at his rearraignment hearing that his offense involved 32.2

kilograms of marijuana. Because the stipulated amount of

marijuana involved in the offense was not a small amount, Delara

was not entitled to be sentenced to a term of imprisonment of one

year under 21 U.S.C. § 841(b)(4). See United States v. Salazar-

Flores, 238 F.3d 672, 673 (5th Cir. 2001).

"[A] fact used in sentencing that does not increase a

penalty beyond the statutory maximum need not be alleged in the

indictment and proved to a jury beyond a reasonable doubt."

United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert.

denied, 121 S. Ct. 1163 (2001). The statutory maximum penalty

for drug offenses involving less than 50 kilograms of marijuana

is five years pursuant to 21 U.S.C. § 841(b)(1)(D). See United

States v. Garcia, 242 F.3d 593, 599 (5th Cir. 2001). Delara’s

sentence of 30 months imprisonment was below the five-year

statutory maximum. Because it was unnecessary to charge a

quantity of drugs in Delara’s indictment, his indictment was

sufficient.

Insofar as Delara is challenging his sentence, the record

reflects that he entered a knowing and voluntary waiver of his

right to appeal his sentence in his plea agreement. See United

States v. Robinson, 187 F.3d 516, 517-18 (5th Cir. 1999). Thus,

review of any sentencing issues is precluded.

Delara’s conviction and sentence are AFFIRMED.