U.S. v. Puentse

Full title: UNITED STATES of America, Plaintiff-Appellee v. Martin PUENTES, Jr.…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jun 19, 2008

283 F. App'x 222 (5th Cir. 2008)

Opinion

No. 07-10604 Conference Calendar.

June 19, 2008.

Camille Elizabeth Sparks, U.S. Attorney's Office Northern District of Texas, Fort Worth, TX, for Plaintiff-Appellee.

Leigh Warren Davis, Fort Worth, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:06-CR-99-3.

Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Martin Puentes, Jr., was convicted by a jury of conspiracy, distribution of a controlled substance, possession with intent to distribute a controlled substance, and aiding and abetting. He was sentenced as a career offender to an aggregated sentence of 360 months of imprisonment and 10 years of supervised release.

After briefing was completed in this case, Puentes moved to relieve appointed counsel and have new counsel appointed. Alternatively, he moved to proceed pro se on appeal and file a new appellate brief. Puentes's assertion of his right to self-representation is untimely. Cf. United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998). All of Puentes's outstanding pro se motions are DENIED.

Puentes argues that the district court erred in enhancing his sentence as a career offender pursuant to U.S.S.G. § 4B1.1 based on a finding that his Texas conviction for possession of a controlled substance with intent to deliver was a "controlled substance offense." Puentes correctly concedes that this argument is foreclosed by United States v. Ford, 509 F.3d 714, 717 (5th Cir. 2007), and he raises it solely to preserve it for further possible review.

Puentes also raises arguments challenging the constitutionality of 21 U.S.C. §§ 841 and 851 that are, as Puentes concedes, foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Mata, 491 F.3d 237, 245 (5th Cir. 2007). The Government has filed a motion for summary affirmance, which is GRANTED. The Government's alternative motion for an extension of time for filing an appellate brief is DENIED, and the judgment of the district court is AFFIRMED.