United States v. Salinas

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41491 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

JUAN GONZABA SALINAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (C-01-CR-142-1) -------------------- August 14, 2002

Before DAVIS, WIENER, AND EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Juan Gonzaba Salinas (“Salinas”) appeals

from his guilty plea conviction and sentence for possession of

marihuana with intent to distribute in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(B), and (b)(1)(D).

Salinas argues that the district court erred in its

application of U.S.S.G. § 4A1.2 by counting two prior burglary

convictions separately, which increased his criminal history score

and resulted in the application of the career offender enhancement.

Salinas cannot make the requisite showing that the prior cases were

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. consolidated. See United States v. Huskey, 137 F.3d 283, 288 (5th

Cir. 1998). Salinas’ reliance on LaPorte v. Texas, 840 S.W.2d 412

(Tex. Crim. App. 1992) (en banc), is misplaced. See United States

v. Fitzhugh, 984 F.2d 143, 147 n.18 (5th Cir. 1993).

Salinas also argues that the district court erred when it

included special conditions of supervised release in its written

judgment that were not orally pronounced at sentencing or,

alternatively, that the district court erred by delegating to the

probation officer the authority to set the timing and amount of

drug/alcohol detection and treatment. Salinas concedes that this

argument is foreclosed by our decision in United States v. Warden,

291 F.3d 363 (5th Cir. 2002).

Salinas next argues that 21 U.S.C. § 841, the statute under

which he was convicted, is unconstitutional in light of the Supreme

Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Salinas concedes that this argument is foreclosed by our prior

ruling in United States v. Slaughter, 238 F.3d 580, 582 (5th Cir.

2000), cert. denied, 532 U.S. 1045 (2001). Because we cannot

overrule an earlier panel’s decision, we reject Salinas’ argument

with respect to these issues. See United States v. Short, 181 F.3d

620, 624 (5th Cir. 1999), cert. denied, 528 U.S. 1091 (2000);

United States v. Mathena, 23 F.3d 87, 91 (5th Cir. 1994).

For the foregoing reasons, we AFFIRM Salinas’s conviction and

sentence.

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