United States v. Ricky D.L. Austin

Tenth Circuit

United States v. Ricky D.L. Austin

64 F.3d 670, 1995 U.S. App. LEXIS 30357, 1995 WL 499523

CourtCourt of Appeals for the Tenth Circuit

DecidedAugust 23, 1995

Docket94-3323

StatusPublished

This text of 64 F.3d 670 (United States v. Ricky D.L. Austin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Ricky D.L. Austin, 64 F.3d 670, 1995 U.S. App. LEXIS 30357, 1995 WL 499523 (10th Cir. 1995).

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64 F.3d 670

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Ricky D.L. AUSTIN, Defendant-Appellant.

No. 94-3323.
(D.C.No. 93-CR-20097)

United States Court of Appeals, Tenth Circuit.

Aug. 23, 1995.

Before TACHA, LOGAN and KELLY, Circuit Judges.2

ORDER AND JUDGMENT1

Mr. Austin pled guilty to possession with intent to distribute approximately 5.25 kilograms grams of cocaine, 21 U.S.C. 841(a)(1), 841(b)(1)(A)(ii), and now appeals from his 120-month mandatory minimum sentence. The basis of this thin appeal concerns apparent discrepancies in the weight of the cocaine, however, all estimates, including that of Defendant's expert, exceed 5000 grams, calling for the mandatory minimum sentence of 120 months. The district court's finding by a preponderance of the evidence that the cocaine had a weight in excess of 5,000 pounds is not clearly erroneous. III R. 27-28. We also think that the district court had it right when remarking "I don't think there's any issue here." Id. We agree. See United States v. Deninno, 29 F.3d 572, 579 (10th Cir.1994), cert. denied, 115 S.Ct. 1117 (1995). The judgment is

AFFIRMED. The mandate shall issue forthwith.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order. 151 F.R.D. 470 (10th Cir.1993)

2

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause therefore is ordered submitted without oral argument

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64 F.3d 670

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Ricky D.L. AUSTIN, Defendant-Appellant.

No. 94-3323.
(D.C.No. 93-CR-20097)

United States Court of Appeals, Tenth Circuit.

Aug. 23, 1995.

Before TACHA, LOGAN and KELLY, Circuit Judges.2

ORDER AND JUDGMENT1

Mr. Austin pled guilty to possession with intent to distribute approximately 5.25 kilograms grams of cocaine, 21 U.S.C. 841(a)(1), 841(b)(1)(A)(ii), and now appeals from his 120-month mandatory minimum sentence. The basis of this thin appeal concerns apparent discrepancies in the weight of the cocaine, however, all estimates, including that of Defendant's expert, exceed 5000 grams, calling for the mandatory minimum sentence of 120 months. The district court's finding by a preponderance of the evidence that the cocaine had a weight in excess of 5,000 pounds is not clearly erroneous. III R. 27-28. We also think that the district court had it right when remarking "I don't think there's any issue here." Id. We agree. See United States v. Deninno, 29 F.3d 572, 579 (10th Cir.1994), cert. denied, 115 S.Ct. 1117 (1995). The judgment is

AFFIRMED. The mandate shall issue forthwith.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order. 151 F.R.D. 470 (10th Cir.1993)

2

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause therefore is ordered submitted without oral argument

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