Unpublished Disposition, 902 F.2d 42 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 42 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Gerardo VALENCIA-FARIAS, a/k/a Victor Diaz Zamora, a/k/aWeddo, Defendant-Appellant.

No. 87-3100.

United States Court of Appeals, Ninth Circuit.

Submitted April 24, 1990.* Decided April 27, 1990.

Before TANG, NELSON and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Gerardo Valencia-Farias appeals his sentence after pleading guilty to conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841(a) (1) and 846.

Counsel for Valencia-Farias filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), which identifies two possible issues for review: (1) whether the district court abused its discretion by sentencing Valencia-Farias to a ten-year term of imprisonment; and (2) whether Valencia-Farias should have been granted credit for time served in state custody before he was transferred to federal custody. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse and remand in part.

* Counsel for Valencia-Farias suggests that the ten-year sentence imposed by the district court is excessive because (1) the government recommended that he be sentenced to a five-year term and (2) a co-defendant also received a ten-year sentence despite allegedly playing a larger role in the conspiracy. This suggestion is meritless.

"Sentencing is left to the sound discretion of the trial judge and his decision is reviewed only for an abuse of discretion. The sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review." United States v. Yarbrough, 852 F.2d 1522, 1545 (9th Cir.) (citations omitted), cert. denied, 109 S. Ct. 171 (1988).

Pursuant to 21 U.S.C. § 841(b) (1) (A) (1980), Valencia-Farias was subject to a maximum term of fifteen years imprisonment; the ten-year sentence imposed by the district court is thus within the statutory limit.1  Moreover, the district judge imposed this sentence after considering the pre-sentence report, which indicated that Valencia-Farias had a significant prior criminal record. Therefore, the district court did not abuse its considerable discretion in sentencing Valencia-Farias to a ten-year term of imprisonment. See Yarbrough, 852 F.2d at 1545.

II

Counsel for Valencia-Farias suggests that Valencia-Farias should have received credit against his federal sentence for time served in state custody before his transfer to federal custody. This suggestion is meritless.

" [T]here is no statutory provision that accords a prisoner credit against a federal sentence for time served in a state prison on a state charge." Raines v. United States Parole Comm'n, 829 F.2d 840, 843 (9th Cir. 1987). Moreover, a district court order granting credit for time served in state custody before the defendant is transferred to federal custody is invalid because a federal sentence cannot begin until the defendant is delivered to federal authorities. United States v. Warren, 610 F.2d 680, 685 n. 9 (9th Cir. 1980); 18 U.S.C. § 3568 (1976).

Here, the district court granted Valencia-Farias credit for time served from the date he was transferred to federal custody until the date he was sentenced. Valencia-Farias is not entitled to credit for time served in state custody before his transfer to federal custody. See Raines, 829 F.2d at 843; Warren, 610 F.2d at 685 n. 9; 18 U.S.C. § 3568.

III

Counsel for Valencia-Farias suggests that because Valencia-Farias does not speak or understand English, he may not have understood the proceedings adequately. This suggestion lacks merit.

Before accepting a guilty plea, the district court must inform the defendant of, and ascertain that he understands, the nature of the charge to which he intends to plead guilty. Fed. R. Crim. P. 11(c) (1); United States v. Kamer, 781 F.2d 1380, 1383 (9th Cir.), cert. denied, 479 U.S. 819 (1986).

Here, the record shows that at the plea hearing, the district court explained to Valencia-Farias his constitutional rights and furnished him with the indictment. Valencia-Farias was represented by counsel and was provided with an interpreter. Furthermore, Valencia-Farias signed a plea agreement which stated in part that (1) he understood his constitutional rights, (2) he was aware of the maximum penalty for the offense, (3) his plea was not induced by promises or coercion and (4) he had read the agreement, had had the agreement read to him, had discussed the agreement with his attorney, and understood the agreement. Thus, the record demonstrates that Valencia-Farias adequately understood the proceedings. See Kamer, 781 F.2d at 1383.

IV

Our independent review of the record, pursuant to Penson v. Ohio, 109 S. Ct. 346, 351 (1988), discloses another issue for review: the $50 special assessment fee included in Valencia-Farias's sentence. We have held 18 U.S.C. § 3013, the statute authorizing imposition of a special assessment fee, to be unconstitutional. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). Accordingly, we reverse and remand to the district court with instructions to vacate the special assessment fee imposed upon Valencia-Farias. See United States v. Hoyt, 888 F.2d 1257, 1258 (9th Cir. 1989).

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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

 1

The plea agreement signed by Valencia-Farias states that he was aware that he faced a maximum penalty of 15 years imprisonment and a $250,000 fine. The plea agreement further states that Valencia-Farias understood that the sentencing judge was not bound by the government's recommendation of a five-year sentence