United States v. Parras-Smith

54 F. App'x 468

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 15, 2003
• Docket: Nos. 01-50454, 01-50198; D.C. No. CR-00-03561-NAJ
• Status: Published

Opinion

MEMORANDUM

**

Leopoldo Parras-Smith appeals (No. 01-50454) the 46-month sentence imposed following his guilty plea conviction for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Parras-Smith also appeals (No. 01-50198), the district court’s denial of his motion to dismiss Count 2 of the indictment. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review de novo the district court’s compliance with Fed.R.Crim.P. 32, United States v. Herrera-Rojas, 243 F.3d 1139, 1142 (9th Cir.2001), as well as the legality of a guideline sentence, United States v. Jackson, 176 F.3d 1175, 1176 (9th Cir.1999) (per curiam). We affirm No. 01-50454 and dismiss No. 01-50198.

Parras-Smith contends that the district court failed to strictly comply with Rule 32. We disagree. The record shows that the district court considered both the Presentence Report and Parras-Smith’s objections thereto in resolving the disputed issues. See United States v. Houston, 217 F.3d 1204, 1208 (9th Cir.2000) (“Although the district court’s findings under Rule 32(c) must be express, they need only state the court’s resolution of the disputed issues.”) (internal quotations and citations omitted).

Parras-Smith’s contention that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) rendered 21 U.S.C. § 841 unconstitutional is foreclosed by our decision in United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc).

Finally, Parras-Smith contends that the applicable statutory maximum was one year pursuant to 21 U.S.C. § 841(b)(4) because his offense involved distribution of a small amount of marijuana for no remuneration. We are unpersuaded by this contention given that Parras-Smith was charged with, and unconditionally pled guilty to, possessing approximately 15.82 kilograms of marijuana with intent to distribute. We also note that Parras-Smith acknowledged during the plea colloquy that the maximum sentence was five years.

We dismiss appeal No. 01-50198 as moot.

No. 01-50454 AFFIRMED; No. 01-50198 DISMISSED.

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.