* 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should not be published and is not precedent except under the limited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
No. 06-41085

2

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 notfind 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 imprisonmentin § 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.