Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding.
Before SCHROEDER, Chief Judge, TASHIMA and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Peter Benjamin Revty appeals his conviction and forty-one month sentence imposed following his conditional guilty plea to one count of importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960. Revty's attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and has moved to withdraw as counsel of record. Revty has not filed a pro se supplemental brief.
Counsel mentions two potential issues for review, the first challenging the constitutionality of 21 U.S.C. §§ 952 and 960 in
Page 803.
light of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This contention is foreclosed by our decisions upholding these statutes despite Apprendi. See United States v. Varela-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir.2002), and United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002).
Counsel next mentions the potential issue of whether Revty was wrongly denied a timely preliminary hearing in violation of Rule 5 of the Federal Rules of Criminal Procedure. Because the transcript reveals that on the day of his scheduled preliminary hearing, Revty explicitly agreed to a fourteen day continuance, there was no Rule 5 violation. See Fed.R.Crim.P. 5(c) (allowing continuances for good cause with defendant's consent). Moreover, the subsequent return of an indictment established probable cause and rendered any preliminary hearing unnecessary. See Austin v. United States, 408 F.2d 808, 810 (9th Cir.1969). Accordingly, the absence of Revty's preliminary hearing did not result in error. Id.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83-84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) discloses no other issues requiring further review. Accordingly, counsel's motion to withdraw is GRANTED and the district court's judgment is AFFIRMED.