United States v. G. Nungaray-Beltran

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1930
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Gerson Nungaray-Beltran, also known *
as La Grande, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 28, 2003
Filed: March 11, 2003
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Before BOWMAN, MURPHY, and RILEY, Circuit Judges.
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PER CURIAM.
After Gerson Nungaray-Beltran (Nungaray-Beltran) pled guilty to conspiring
to distribute and possess with intent to distribute more than 500 grams of a substance
containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), and 846,
the district court1 sentenced him to 145 months imprisonment and 5 years supervised
release. On appeal, counsel moved to withdraw and filed a brief under Anders v.
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The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
California, 386 U.S. 738 (1967). Nungaray-Beltran filed a pro se supplemental brief
arguing the district court erred in applying a firearm enhancement and in denying him
safety-valve relief. He also argues: (1) the government failed to prove whether the
drugs underlying his offense were l- or d-methamphetamine, or whether they were
methamphetamine at all; (2) the Attorney General improperly reclassified
methamphetamine in powder form from a Schedule III to a Schedule II controlled
substance; and (3) counsel was ineffective at sentencing. After careful review of the
record, we affirm.
We reject Nungaray-Beltran’s arguments for reversal. The firearm
enhancement was proper, as firearms were found with drug-packaging materials both
at Nungaray-Beltran’s residence and at his rental house. See U.S.S.G. § 2D1.1, cmt.
n.3; United States v. Cave, 293 F.3d 1077, 1079 (8th Cir. 2002) (standard of review);
United States v. Jones, 195 F.3d 379, 383-84 (8th Cir. 1999). As a result, safety-
valve relief was preempted. See U.S.S.G. § 5C1.2(a)(2).
Further, section 841(b) does not differentiate between l- and d-
methamphetamine, see United States v. Maza, 93 F.3d 1390, 1400 n.4 (8th Cir. 1996),
cert. denied, 117 S. Ct. 1008 (1997); Nungaray-Beltran acknowledged in his plea
agreement he was pleading guilty to a charge involving 500 grams or more of
“methamphetamine”; and laboratory reports introduced at sentencing reflected the
substance in question was methamphetamine, see United States v. Hyatt, 207 F.3d
1036, 1037-38 (8th Cir. 2000). Finally, Congress has given the Attorney General
authority to transfer drugs from one schedule to another regardless of the drug’s
initial placement, see 21 U.S.C. §§ 811(a)(1) and 812(c), and the ineffective-
assistance claim is not properly before us, see United States v. Martin, 59 F.3d 767,
771 (8th Cir. 1995).
Accordingly, we grant counsel’s motion to withdraw, and we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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