United States v. Puentes ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 19, 2008
No. 07-10604
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARTIN PUENTES, JR
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:*
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
*
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should not be published and is not precedent except under the limited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. 07-10604
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 (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.
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