United States v. Daniel Vilarchao ( 2019 )

Case: 18-50769 Document: 00515064616 Page: 1 Date Filed: 08/06/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-50769 FILED
Summary Calendar August 6, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL VILARCHAO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:86-CR-30-5
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Daniel Vilarchao, federal prisoner # 14972-004, is serving a life sentence
imposed in 1990 for engaging in a “continuing criminal enterprise” (CCE),
under 21 U.S.C. § 848. He appeals the denial of a motion to correct an illegal
sentence under the pre-1987 version of Federal Rule of Criminal
Procedure 35(a), which applies to him because his crimes were committed prior
to 1987. Under the applicable version of Rule 35, a district “court may correct
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-50769 Document: 00515064616 Page: 2 Date Filed: 08/06/2019
No. 18-50769
an illegal sentence at any time.” FED. R. CRIM. P. 35(a) (2019) (text following
“Rule Applicable To Offenses Committed Prior To Nov. 1, 1987”).
Vilarchao contends that his sentence is unconstitutional under Apprendi
v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99(2013), because the Government did not prove to the jury that his crime
involved the specific drug quantity needed to subject him to a mandatory life
sentence. He also asks for appointment of counsel.
At the time of Vilarchao’s CCE offense, 21 U.S.C. § 848 provided in
pertinent part that any person engaged “in a continuing criminal enterprise
shall be sentenced to a term of imprisonment which may not be less than 10
years and which may be up to life imprisonment.” § 848 (1981), quoted in
Garrett v. United States, 471 U.S. 773, 779-80 & n.1 (1985)). As the district
court noted, nothing in the applicable version of § 848 required any additional
proof, such as a specific drug quantity, before a life sentence could be imposed.
Because Vilarchao was not subject to a life sentence based on facts other than
those proven at his trial, neither Apprendi nor Alleyne applies to render his
sentence illegal.
The denial of the Rule 35 motion is AFFIRMED. The motion for
appointment of counsel is DENIED.
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