United States v. Salinas

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 24, 2003

Charles R. Fulbruge III Clerk No. 02-41663 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUMERCINDO SALINAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-02-CR-189-1 --------------------

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

PER CURIAM:*

Gumercindo Salinas appeals the mandatory-minimum 60-month

sentence imposed following his guilty plea to possession with

intent to distribute more than 500 grams of cocaine, in violation

of 21 U.S.C. § 841. Salinas contends that his prior Texas

conviction and suspended jail sentence for driving while

intoxicated (DWI) were constitutionally invalid and could

not be included in his criminal history score for purposes of

determining his sentencing range under the United States

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41663 -2-

Sentencing Guidelines. He contends that absent the one point

assessed for that conviction, he would have qualified for a

safety-valve reduction from the mandatory-minimum sentence

pursuant to U.S.S.G. § 5C1.2. He also argues for the first time

on appeal that 21 U.S.C. § 841 is unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). He concedes that

this latter argument is foreclosed by this court’s precedent, but

he raises it to preserve it for possible Supreme Court review.

Salinas did not meet his burden of proving the

constitutional invalidity of the DWI conviction by producing

evidence in support of his invalid-counsel-waiver argument.

See United States v. Osborne, 68 F.3d 94, 100-01 (5th Cir. 1995).

In addition, even without the criminal history point assessed

for that conviction, the district court stated at sentencing that

Salinas would not qualify for the safety valve because he did not

debrief truthfully, and that determination is plausible in light

of the record as a whole. See United States v. Edwards, 65 F.3d

430, 432 (5th Cir. 1995).

Salinas’ Apprendi argument is foreclosed. See United States

v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).

AFFIRMED.