Opinion
Argued and Submitted Jan. 14, 2003.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted in the United States District Court for the District of Arizona, Earl H. Carroll, J., after he pled guilty to drug possession, and he appealed. The Court of Appeals held that: (1) District Court did not violate Apprendi when it considered quantity of drugs involved in dismissed drug possession count to enhance defendant's sentence, and (2) defendant failed to show that his substantial rights were affected when District Court allegedly omitted to inform him at time of entry of guilty plea that he would become ineligible for certain federal benefits because of drug conviction.
Affirmed. Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, District Judge, Presiding.
Before SCHROEDER, Chief Judge, GOODWIN and CLIFTON, Circuit Judges.
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.
Martin Vautt-Romero ("Romero") appeals his drug conviction, alleging Rule 11(c) errors in his plea colloquy. Romero was charged with two counts of drug possession and one count of possession of a firearm by an illegal alien. The second drug count was dismissed pursuant to a plea agreement. Romero now argues that his conviction for the remaining drug count must be reversed because the district court (1) committed an Apprendi error when it failed to inform him that the government would have to prove beyond a reasonable doubt the quantity of drugs involved in the dismissed drug count which was used to enhance his sentence, and (2) omitted to inform him that he would become ineligible for certain federal benefits because of the drug conviction. We affirm.
Because Romero did not object to the alleged errors below, this court will reverse a conviction only upon finding plain error affecting a defendant's "substantial rights." Fed.R.Crim.P. 52(b); United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002); United States v. Minore, 292 F.3d 1109, 1117 (9th Cir.2002). The defendant has the burden to show that an error affected his substantial rights. Vonn, 122 S.Ct. at 1048.
No Apprendi error was committed by the district court when it considered the quantity of drugs involved in the dismissed drug count to enhance Romero's sentence. His sentence of 57 months clearly did not exceed the statutory maximum sentence applicable to his conviction under 21 U.S. C.§ 841(b)(1)(C), which provides for a maximum sentence of 20 years. See, e.g., United States v. Ochoa, 311 F.3d 1133, 1136 (9th Cir.2002) (holding that Apprendi is not implicated where drug quantity led to increase in offense level but sentence was within statutory range).
As for the second error assigned, Romero has failed to show that his substantial rights were affected. He does not contend that the error was not minor or technical, or that he did not understand the rights at issue when he entered his guilty plea. Cf. Minore, 292 F.3d at 1119. Neither does Romero claim that his choices would have been different had he known of the loss of federal benefits. Cf. United States v. Littlejohn, 224 F.3d 960, 969 (9th Cir.2000).
Romero also appeals his sentence. Because he waived his right to appeal in his plea agreement, and received the benefit
Page 751.
of his bargain, the appeal from the sentence is dismissed. The judgment is
AFFIRMED