United States v. Misael Farias-Rubio

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2229
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota
Misael Farias-Rubio, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 25, 2002
Filed: November 14, 2002
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Before McMILLIAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Misael Farias-Rubio appeals from the final judgment entered in the District
Court for the District of Minnesota after he pleaded guilty to possessing with the
intent to distribute approximately one pound of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and illegal reentry
after deportation, in violation of 8 U.S.C. § 1326. The district court sentenced Farias-
Rubio to 120 months imprisonment and 5 years supervised release on each count, to
be served concurrently. On appeal, counsel has filed a brief and moved to withdraw
under Anders v. California, 386 U.S. 738 (1967), arguing for reversal that the district
court erred in denying safety-valve relief. In his pro se supplemental brief, Farias-
Rubio argues that he was not informed of his right under the Vienna Convention to
contact his consul; the Attorney General changed methamphetamine from a Schedule
III to a Schedule II controlled substance, contrary to 21 U.S.C. § 812, and his
sentence exceeds the statutory maximum for a Schedule III drug; and the
methamphetamine seized was the result of an illegal search. For the reasons
discussed below, we affirm the judgment of the district court as modified.
We conclude that the district court did not clearly err in denying safety-valve
relief. The district court was entitled to rely upon a codefendant’s statement and
could conclude from that statement that Farias-Rubio had not been truthful and was
not eligible for safety-valve relief. See United States v. Velasquez, 141 F.3d 1280,
1283 (8th Cir.), cert. denied, 525 U.S. 897 (1998).
We reject Farias-Rubio’s remaining arguments. His guilty plea forecloses his
Vienna Convention and illegal search arguments, see United States v. Guzman-
Landeros, 207 F.3d 1034, 1035 (8th Cir. 2000); United States v. Arrellano, 213 F.3d
427, 430 (8th Cir. 2000), and Congress has given the Attorney General the authority
to transfer drugs from one schedule to another regardless of the drug’s initial
placement in § 812, see 21 U.S.C. §§ 811(a)(1), 812(c).
Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
find that the district court erred in sentencing Farias-Rubio to 120 months
imprisonment and 5 years supervised release on the illegal reentry charge because the
maximum penalty for a basic illegal reentry offense is 2 years, see 8 U.S.C. § 1326(a),
and the authorized term of supervised release is 1 year, see 18 U.S.C. §§ 3559,
3583(b)(3), and none of the factors for increasing the statutory maximum is present.
We find that this was plain error, see United States v. Maynie, 257 F.3d 908, 918-19
(8th Cir. 2001), cert. denied, 534 U/S. 1151, and cert. denied, 122 S. Ct. 1333 (2002),
and we modify the sentence for that conviction to be 24 months imprisonment and 1
-2-
year supervised release. See U.S.S.G. §§ 5G1.1(a), 5G1.2 comment. We find no
other nonfrivolous issues.
Accordingly, we modify the sentence on the illegal reentry conviction and
grant counsel’s motion to withdraw, and we affirm the conviction and sentence as
modified.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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