United States v. Mena-Valerino , 117 F. App'x 335 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 29, 2004
Charles R. Fulbruge III
Clerk
No. 04-10099
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCOS MENA-VALERINO; HARLES PORTES HERRERA,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-92-2-Y
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Marcos Mena-Valerino (“Mena”) and Harles Portes Herrera
(“Portes”) appeal their convictions for possession and conspiracy
to possess with intent to distribute more than 1000 kilograms of
marijuana. Mena and Portes argue that the Government failed to
prove that they conspired and possessed more than 1000 kilograms
of marijuana, as alleged in the indictment, because evidence at
trial showed that only 953 grams of marijuana had been tested.
They assert that they should not have been subjected to the 10-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-10099
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year mandatory minimum sentence under 28 U.S.C. § 841(b)(1)(A),
but rather sentenced under 28 U.S.C. § 841(b)(1)(D), which
penalizes cases involving less than 50 kilograms of marijuana.
They contend that their sentences violate Apprendi v. New Jersey,
530 U.S. 466 (2000), because their sentences exceed the five-year
statutory maximum sentence set forth in 28 U.S.C. § 841(b)(1)(D).
“[I]f the government seeks enhanced penalties based on the
amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the
quantity must be stated in the indictment and submitted to a jury
for a finding of proof beyond a reasonable doubt.” See United
States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000); see also
Apprendi v. New Jersey, 530 U.S. at 490. Here, the quantity of
marijuana was alleged in the indictment and submitted to the
jury. Thus, there can be no Apprendi error. See Doggett, 230
F.3d at 165. Additionally, there was sufficient evidence
presented at trial to prove that the amount of marijuana involved
was more than 1000 kilograms. See United States v. Fitzgerald,
89 F.3d 218, 223 n.5 (5th Cir. 1996) (“Random sampling is
generally accepted as a method of identifying the entire
substance whose quantity has been measured”).
Mena and Portes also argue that the district court abused
its discretion in permitting a Government agent to testify to
their post-arrest statements, which were translated by a Spanish
interpreter. Citing to United States v. Nazemian, 948 F.2d 522(9th Cir. 1991), they contend that the interpreter did not act as
No. 04-10099
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a mere language conduit, but rather her translated statements
created an additional level of hearsay.
The district court did not abuse its discretion in
determining that the interpreter was a mere “language conduit.”
See United States v. Cordero, 18 F.3d 1248, 1253 (5th Cir. 1994)
(quoting United States v. Lopez, 937 F.2d 716, 724 (2d Cir.
1991)); see also Nazemian, 948 F.2d at 527. The record reflects
that Mena and Portes spoke and understood English. The
reliability of the interpreter’s translated statements is
indicated by the failure of Mena and Portes to correct the
translation. See Lopez, 937 F.2d at 724. Because the
interpreter’s translated statements do not constitute hearsay,
see Cordero, 18 F.3d at 1253, the district court did not abuse
its discretion in allowing the Government agent to testify to the
translated statements at trial. See Lopez, 937 F.2d at 724;
United States v. Mendoza-Medina, 346 F.3d 121, 127 (5th Cir.
2003), cert. denied, 124 S. Ct. 1161 (2004).
Mena argues that the district court erred in its calculation
of drug quantity at sentencing. Although Mena filed objections
to the presentence report, Mena has failed to provide this court
with a transcript of his sentencing hearing. This court will not
consider an issue about which the record on appeal is
insufficient. See FED. R. APP. P. 10(b); United States v.
Johnson, 87 F.3d 133, 136 n.1 (5th Cir. 1996). Furthermore,
Mena’s argument pursuant to Blakely v. Washington, 124 S. Ct.
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2531 (2004), is foreclosed by this court’s decision in United
States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004), pet. for
cert. filed (July 14, 2004) (No. 04-5263) (Blakely does not
extend to the federal Guidelines).
Accordingly, Mena’s and Portes’s convictions and sentences
are AFFIRMED.