United States v. Padilla-Baltazar

63 F. App'x 370

Opinion

MEMORANDUM **

Salvador Padilla-Baltazar appeals his conviction and sentence following his guilty plea to importing marijuana in violation of 21 U.S.C. §§ 952, 960. Padilla-Baltazar’s contention that sections 952 and 960 are facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is foreclosed by our decisions in United States v. Mendoza-Paz, 286 F.3d 1104, 1110 (9th Cir.2002); and United States v. Buckland, 289 F.3d 558 (9th Cir.) (en banc), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002).

His contention that the Supreme Court’s decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), overruled the decisions in Buckland and Mendoza-Paz is foreclosed by United States v. Hernandez, 314 F.3d 430, as amended, 322 F.3d 592, 2003 WL 730663 (9th Cir. Mar.5, 2003).

Padilla-Baltazar also contends that the district court erred under U.S.S.G. § 3B1.2 by applying a two-level downward adjustment in sentence for his minor role in the offense rather than a four-level downward adjustment for his minimal role as a courier. He lacks standing to challenge the district court’s calculation of his sentence because he has completed serving his sentence. See United States v. Palomba, 182 F.3d 1121, 1123 (9th Cir.1999); see also United States v. Johnson, 529 U.S. 53, 54, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) (holding that time served in excess of prison sentence is not credited to the supervised release term). Accordingly, Padilla-Baltazar’s appeal from the sentence must be dismissed as moot.

AFFIRMED in part and DISMISSED in part.

Footnotes

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