* 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that this opinion should not be published and is not precedent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. 01-30345

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANKLIN DAVID MIRANDA,

also known as Frankie,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 00-CR-264-2-B

--------------------

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 supervisedrelease 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.
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 
No. 01-30345

-3-

§ 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
No. 01-30345

-4-

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.