United States v. Benitez-Farias
Opinion of the Court
MEMORANDUM
Miguel Benitez-Farias appeals a jury verdict finding him guilty of two counts of possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1), and his sentence following his guilty plea of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Benitez-Farias was sentenced to 120 months for each of the 21 U.S.C. § 841(a)(1) convictions and to 110 months for the 8 U.S.C. § 1326 conviction. All of the sentences run concurrently. We have jurisdiction, 18 U.S.C. § 3742(a); 28 U.S.C. § 1291, and affirm.
I
Benitez-Farias argues that the government suppressed information about the confidential informant (Cl) in violation of its Brady obligations.
Given what was produced, and the role of the Cl in this case, we cannot see how copies of additional contracts or testimony could be material.
II
Benitez-Farias contends there was insufficient evidence to support his conviction on count two, but viewing the record in the light most favorable to the government, there is evidence from which a rational jury could find beyond a reasonable doubt that Benitez-Farias had dominion and control over the duct-tape ball of methamphetamine. See United States v. Magallon-Jimenez, 219 F.3d 1109, 1113 (9th Cir. 2000). The duct-tape ball was found directly under Benitez-Farias’s feet; the ball did not belong to Rist; Benitez-Farias had admitted to Rist that he had a ball in his pocket earlier that evening; and one could see plastic and a substance through the ball.
III
Benitez-Farias argues that the indictment, by not referring to a specific subsection, charged him under 8 U.S.C. § 1326(a) rather than 8 U.S.C. § 1326(b), limiting his sentence to two years imprisonment.
Nor was the court precluded from imposing a more severe sentence than contemplated by the plea agreement. Unlike United States v. Fernandez, 960 F.2d 771 (9th Cir. 1992), this was not a Rule 11(e)(1)(C) plea. Benitez-Farias’s plea agreement specifically left the sentence up to the district court.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
. We do not address issues raised for the first time in Benitez-Farias’s reply brief because they are waived. See Omega Environmental, Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1167 (9th Cir. 1997), cert. denied, 525 U.S. 812, 119 S.Ct. 46, 142 L.Ed.2d 36 (1998).
. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
. "The Brady rule extends to impeachment evidence, if the reliability of the witness may be determinative of the defendant’s guilt or innocence.” United States v. Bracy, 67 F.3d 1421, 1428 (9th Cir. 1995); United States v. Ciccone, 219 F.3d 1078, 1085 (9th Cir. 2000).
. We review de novo the legality of a sentence. See United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000).
. We do not require supplemental briefing on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because any Apprendi error would be harmless. See United States v. Garcia-Guizar, 234 F.3d 483, 488-89 (9th Cir. 2000) (holding that any Apprendi error is harmless if the defendant is sentenced to less than the statutory maximum).
Reference
- Full Case Name
- United States v. Miguel BENITEZ-FARIAS
- Status
- Published