Summary Calendar UNITED STATES OF AMERICA v. David Joel Barela

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41085
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DAVID JOEL BARELA
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:05-CR-174-1
Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
David Joel Barela was convicted of one count of conspiracy to possess with
intent to distribute or dispense over 50 grams of a substance containing
methamphetamine (Count One), one count of possession with intent to distribute
or dispense methamphetamine (Count Two), and one count of being a felon in
possession of a firearm (Count Three). Barela was sentenced to concurrent
150-month terms of imprisonment on Counts One and Two and to another
concurrent term of 120 months of imprisonment on Count Three. His
imprisonment is to be followed by concurrent eight-year terms of supervised
United States Court of Appeals
Fifth Circuit
F I L E D
September 29, 2008
Charles R. Fulbruge III
Clerk

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No. 06-41085
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release on Counts One and Two and by another concurrent three-year term of
supervised release on Count Three. Barela was also ordered to pay $6,000 in
fines and $300 in special assessments.
Barela contends that the district court erred in overruling his objection to
the chain of custody with respect to four pieces of evidence: a Glock .45 caliber
semi-automatic handgun (exh. 3), a Titan .25 caliber semi-automatic handgun
(exh. 4), a glass pipe (exh. 46), and a digital scale (exh. 47). When Barela
challenged the admission of this evidence below, the Government made the
requisite prima facie showing of authenticity. See United States v. Sparks, 2
F.3d 574, 582 (5th Cir. 1993). Accordingly, the district court did not abuse its
discretion in overruling Barela’s objection. See United States v. Dixon, 132 F.3d
192, 197 (5th Cir. 1997).
Barela also contends that the district court committed plain error when it
sentenced him under the statutory maximum term of life imprisonment in 21
U.S.C. § 841(b)(1)(B) rather than the 30-year maximum term in (b)(1)(C) for his
conviction on Count Two of possession with intent to distribute
methamphetamine following a prior conviction for a felony drug offense. The
district court did in fact commit clear error in sentencing Barela under the
higher statutory maximum in subsection (b)(1)(B) because the indictment did not
charge—and the jury did not find beyond a reasonable doubt—that he possessed
50 grams or more of methamphetamine with respect to Count Two as required
for subsection (b)(1)(B) to apply. See United States v. Randle, 304 F.3d 373, 376
(5th Cir. 2002). However, Barela’s 150-month prison sentence on Count Two did
not exceed the statutory maximum of 30 years of imprisonment in § 841(b)(1)(C),
and Barela did not show that the error affected his substantial rights. See
United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000) (affirming on de novo
review). Because Barela has not shown plain error, see United States v. Olano,
507 U.S. 725, 731-37 (1993), we affirm his sentence.
The judgment of the district court is AFFIRMED.

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