United States v. Francisco , 83 F.3d 434 ( 1996 )

83 F.3d 434

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Veronica FRANCISCO, Defendant-Appellant.

Nos. 95-2052, 95-2199.

United States Court of Appeals, Tenth Circuit.

May 2, 1996.

Before SEYMOUR, Chief Judge, McKAY and LUCERO, Circuit Judges.

ORDER AND JUDGMENT*

McKAY, Circuit Judge.

1

The parties have agreed that this case may be submitted for decision on the briefs. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.2. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cases are therefore ordered submitted without oral argument.

2

Defendant Veronica Francisco pled guilty to being a felon in possession of a firearm. During sentencing the district court found that Defendant's sentence should be enhanced pursuant to the armed career offender statute, 18 U.S.C. § 924(e)(1). Defendant was sentenced to 180 months, and the court ordered the sentence to run concurrently with the sentence Ms. Francisco was serving for a parole violation in another case. Defendant now directly appeals her sentence by challenging the constitutionality of § 924(e).

3

Defendant was convicted in New Mexico of burglary in January 1981, and again in January 1982. In September 1988, Defendant was convicted in New Mexico of the offenses of conspiracy to manufacture methamphetamine, manufacturing methamphetamine, and distribution of methamphetamine.

4

In April 1994, police executed a search warrant at Defendant's residence. In the course of the search, police officers found quantities of cocaine, methamphetamine, and marijuana. A .32 caliber handgun was found in the room occupied by Ms. Francisco. A second .32 caliber handgun was found in an adjacent bedroom.

5

After being indicted, Defendant entered a guilty plea to being a felon in possession of a firearm and was sentenced to the statutory minimum of fifteen years. At sentencing, Defendant failed to challenge the constitutionality of 18 U.S.C. § 924(e).

6

Defendant appeals her sentence, raising the following issues: whether the mandatory sentence imposed violated the Separation of Powers Clause, the Double Jeopardy Clause, or Defendant's due process rights. Defendant has waived these constitutional objections by failing to assert them before the district court. Therefore, we will not consider these issues because they were not properly raised in the first instance before the district court.

7

AFFIRMED. The mandate shall issue forthwith.

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3