United States v. Arzola-Amaya ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 18, 2006
Charles R. Fulbruge III
Clerk
No. 05-51177
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AUDELIO ARZOLA-AMAYA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. 3:87-CR-162-1
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Audelio Arzola-Amaya, federal prisoner # 38898-080, appeals
from the district court’s order partially denying him relief
pursuant to former FED. R. CRIM. P. 35. Arzola-Amaya moves for
appointment of counsel; his motion is denied.
Arzola-Amaya contends that the superseding indictment
violated the Ex Post Facto Clause because the criminal conduct
alleged in the continuing criminal enterprise (CCE) count of the
superseding indictment began before the effective enactment date
*
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this opinion should not be published and is not precedent except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. 05-51177
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of 21 U.S.C. § 848(b) and that the mandatory life sentence of
§ 848(b) was erroneous because § 848(b) is a sentence-enhancement
provision and that, therefore, the district court erred by
considering one of the overt acts alleged in the superseding
indictment as a separate offense. He also contends that the
district court erred by failing to instruct the jury that it must
agree unanimously on three specific predicate offenses to convict
him of CCE and by failing to instruct the jury properly regarding
the requirement that he derived substantial income from the CCE.
He further contends that the district court’s failure to arraign
him pursuant to a superseding indictment forced him to go to
trial without adequate notice of the charges against him.
Arzola-Amaya’s contentions regarding the jury instructions
and the alleged failure to arraign him pursuant to a superseding
indictment are not cognizable under former Rule 35. See United
States v. Prestenbach, 230 F.3d 780, 782 (5th Cir. 2000). The Ex
Post Facto Clause is not violated by convictions or sentences for
offenses that began before a statute’s effective date but
continue thereafter. See United States v. Olis, 429 F.3d 540,
545 (5th Cir. 2005). The overt acts alleged against Arzola-Amaya
occurred between January 1983 and June 1987. Application of
§ 848(b) did not violate the Ex Post Facto Clause. See id. The
Double Jeopardy Clause is not violated by conviction and
sentencing for a substantive offense that also serves as a CCE
predicate act. Garrett v. United States, 471 U.S. 773, 793
No. 05-51177
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(1985). To the extent that Arzola-Amaya is suggesting that his
sentence violated the Double Jeopardy Clause, that contention is
unavailing.
AFFIRMED. APPOINTMENT OF COUNSEL DENIED.