IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30345
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANKLIN DAVID MIRANDA,
also known as Frankie,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CR-264-2-B
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November 8, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Franklin David Miranda challenges the sentence he received
following his guilty-plea conviction for conspiracy to distribute
heroin, in violation of 21 U.S.C. § 846. He argues that the
district court erred by sentencing him to a five-year supervised-
release term after having admonished him at rearraignment that he
faced no more than four years’ supervised release. The
Government concedes the error and argues that the case should be
remanded for resentencing.
*
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that this opinion should not be published and is not precedent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. 01-30345
-2-
Both Miranda and the Government are incorrect. The claim
is not one of sentencing error but of alleged error under Fed.
R. Crim. Proc. 11. Although Miranda states that he relied on the
misinformation regarding the four-year maximum term of supervised
release in “weighing the ramifications of pleading guilty,” at no
time did he attempt to withdraw his plea or assert that it was
involuntary or made without adequate knowledge. Instead, Miranda
appears to assert that a Rule 11 error vitiates a subsequently
imposed sentence and requires automatic remand for resentencing.
There is no authority for this proposition.
The district court erred in advising Miranda regarding the
maximum term of supervised release he would receive, but the
error does not affect the sentence imposed, only the validity of
the plea itself. See, e.g., Rule 11(c) and (h). Because Miranda
has not argued any error in connection with his plea but requests
only resentencing, he seeks relief which is not available for a
Rule 11 violation, and his claim fails.
Miranda also renews his argument that he was entitled to a
sentencing reduction under U.S.S.G. § 3B1.2 for playing a minimal
or minor role in the offense because he was only a courier and
because he was less culpable than his codefendant. He does not
renew the argument that the adjustment was warranted based on the
purity level of the heroin involved, and that claim is therefore
waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993)(arguments not briefed on appeal are deemed abandoned).
The district court did not clearly err in refusing the
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§ 3B1.2 adjustment. See United States v. Zuniga, 18 F.3d 1254,
1261 (5th Cir. 1994). Even if Miranda had served only as a
courier, that alone would not entitle him to the reduction. See
United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989).
However, contrary to his assertions, Miranda did more than serve
as a mere courier; the PSR found that he contacted the
confidential informant (“CI”) to arrange payment for the drugs
and was arrested with Alvarez at the site where payment was made.
The district court concluded that, although his codefendant may
have been more culpable than Miranda, the preponderance of the
evidence showed that Miranda was aware of the full scope of the
drug-trafficking activities and that Miranda was not
substantially less culpable than his codefendant. See § 3B1.2,
comment. (n.1 and 3). Miranda’s conclusional assertions that he
only handled money and that he had never contacted the CI are not
supported by any record evidence, nor has he presented any
evidence to contradict the findings of the PSR. Miranda has
neither alleged nor proved that he was not aware of the scope of
the conspiracy or that he played a substantially less meaningful
role in the offense than did his codefendant, and he has thus
failed to sustain his burden of proving his mitigating role in
the offense. See United States v. Brown, 54 F.3d 234, 241 (5th
Cir. 1995).
By his third issue, Miranda renews his challenge to the
calculation of the amount of heroin attributed to him for
sentencing purposes. He argues that the preponderance of the
evidence did not demonstrate that there was heroin, as opposed to
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possibly only Benzocaine and Procaine, in each of the three
baggies seized from the CI.
The PSR found that each baggie seized from the CI contained
heroin, as was confirmed by Agent Gill, which finding was adopted
by the district court. Miranda thus has the burden of showing
that the information in the PSR was materially untrue. United
States v. Shipley, 963 F.2d 56, 59 (5th Cir. 1992); see § 6A1.3.
Miranda has not argued that the information in the PSR was
materially untrue. Instead, he argues that Gill’s testimony is
“suspect;” however, he provides no factual support for this
speculative and conclusional allegation, and it is insufficient
to make the required showing. His claim thus fails.
Miranda has not demonstrated any error in the district
court’s judgment. Accordingly, the judgment is AFFIRMED.