United States v. Pastrana

MEMORANDUM ** Joe Martin Pastrana appeals the 120-month sentence imposed following his guilty plea to importation of cocaine, in violation of 21 U.S.C. §§ 952 , 960. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Pastrana first contends under United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), that the district court had the discretion to disregard his criminal history points for purposes of determining safety-valve eligibility under 18 U.S.C. § 3553 (f). Pastrana’s contention lacks merit. The mandatory nature of section 3553(f) did survive Booker , but it does also require district courts “to apply its relief from mandatory minimums in appropriate cases.” See United States v. Cardenas-Juarez, 469 F.3d 1331, 1335 (9th Cir.2006). However, Pastrana is not eligible for safety-valve relief because he, as he concedes, has more than one criminal history point. See 18 U.S.C. § 3553 (f)(1); cf. Cardenas-Juarez, 469 F.3d at 1335 (vacating sentence where there was no dispute over safety-valve eligibility). Pastrana next contends his prior convictions, for purposes of calculating his criminal history points, cannot be used unless they were first charged in the indictment and then proved to a jury or admitted during the plea colloquy. Pastrana concedes, and we agree, that this contention is foreclosed. See United States v. Weiland, 420 F.3d 1062 (9th Cir.2005). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.