United States v. Post

MEMORANDUM ^*

Michael E. Post appeals his conviction and sentence on charges of importation of marijuana and of possession of marijuana with intent to distribute. See 21 U.S.C. §§ 841, 952, and 960.

(1) Post argues that just as an alien has not entered the United States if he does not get clear of official restraints,¹ a person has not imported drugs, if he immediately falls into the clutches of the customs officers. We rejected that argument over three decades ago. See Daut v. United States, 405 F.2d 312, 316 (9th Cir.1968). We shall not recede from that decision now.

(2) Post also avers that the district court violated his constitutional rights when it held his decision to remain silent at sentencing against him. Perhaps the district court would have erred had it done that. See Mitchell v. United States, 526 U.S. 314, 316-17, 327-29, 119 S.Ct. 1307, 1309, 1314-15, 143 L.Ed.2d 424 (1999); United States v. LaPierre, 998 F.2d 1460, 1467 (9th Cir.1993); United States v. Safirstein, 827 F.2d 1380, 1388 (9th Cir.1987). But it did not. In fact, it expressly disclaimed doing that, and we have no reason to dub the court a facticide. There was no error.

AFFIRMED on the issues discussed above.²

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . United States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th Cir.2000).

2 . We vacate submission of Post's claims under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) in an order filed concurrently with this disposition.