Opinion
Argued and Submitted June 5, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted, in the United States District Court for the Southern District of California, Jeffrey T. Miller, J., of importation of marijuana and possession of marijuana with intent to distribute. Defendant appealed. The Court of Appeals held that defendant "imported" drugs, as element of importation of marijuana, even if defendant immediately fell into the clutches of the customs officers.
Affirmed.
Page 523.
Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding.
Before D.W. NELSON, FERNANDEZ, and RYMER, Circuit Judges.
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.
Michael E. Post appeals his conviction and sentence on charges of importation of marijuana and of possession of marijuana with intent to distribute. See 21 U.S.C. §§ 841, 952, and 960.
(1) Post argues that just as an alien has not entered the United States if he does not get clear of official restraints, a person has not imported drugs, if he immediately falls into the clutches of the customs officers. We rejected that argument over three decades ago. See Daut v. United States, 405 F.2d 312, 316 (9th Cir.1968). We shall not recede from that decision now.
United States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th Cir.2000).
(2) Post also avers that the district court violated his constitutional rights when it held his decision to remain silent at sentencing against him. Perhaps the district court would have erred had it done that. See Mitchell v. United States, 526 U.S. 314, 316-17, 327-29, 119 S.Ct. 1307, 1309, 1314-15, 143 L.Ed.2d 424 (1999); United States v. LaPierre, 998 F.2d 1460, 1467 (9th Cir.1993); United States v. Safirstein, 827 F.2d 1380, 1388 (9th Cir.1987). But it did not. In fact, it expressly disclaimed doing that, and we have no reason to dub the court a facticide. There was no error.
AFFIRMED on the issues discussed above.
We vacate submission of Post's claims under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) in an order filed concurrently with this disposition.