U.S. v. Aviles-Garcia

Full title: UNITED STATES of America, Plaintiff-Appellee, v. Mireya AVILES-GARCIA…

Court: United States Court of Appeals, Ninth Circuit

Date published: Aug 29, 2001

17 F. App'x 674 (9th Cir. 2001)

Opinion

17 Fed.Appx. 674 (9th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Mireya AVILES-GARCIA, Defendant-Appellant. No. 00-50575. D.C. No. CR-00-00721-NAJ. United States Court of Appeals, Ninth Circuit. August 29, 2001

Submitted August 13, 2001. ^*

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, Aviles-Garcia's request for oral argument is denied.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding.

Before HAWKINS, TASHIMA and GOULD, Circuit Judges.

MEMORANDUM ^**

** 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 9th Cir. R. 36-3.

Mireya Aviles-Garcia appeals the 18-month sentence imposed by the district court following her guilty-plea conviction for importation of approximately 40.80 kilograms of marijuana, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Aviles-Garcia contends that the district court erred by finding that an unconvicted drug seizure was relevant conduct for purposes of determining the attributable quantity of marijuana, resulting in an increase to her offense level under U.S. S.G. § 2D1.1 and a violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We review a district court's interpretation of the guidelines de novo and factual findings for clear error. United States v. Castillo, 181 F.3d 1129, 1134-35 (9th Cir.1999).

The district court here determined beyond a reasonable doubt that marijuana seized in a prior drug seizure was relevant conduct pursuant to U.S. S.G. § 1B1.3 because it involved an ongoing course of behavior within a short time interval and, therefore, Aviles-Garcia was accountable for a combined total of 73.94 kilograms of marijuana making her base offense level 22. Because inclusion of the 33.14 kilograms of marijuana from the prior seizure did not increase the actual sentence beyond the statutory maximum of five years, 21 U.S.C. § 960(b)(4), any error was harmless beyond a reasonable doubt. See United States v. Velasco-Heredia, 249 F.3d 963, 968 (9th Cir.2001) (stating that sentence imposed in violation of Apprendi

Page 675.

stands where district court error was harmless beyond a reasonable doubt); United States v. Garcia-Guizar, 234 F.3d 483, 488-89 (9th Cir.2000).

AFFIRMED.