                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1701
                                   ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of North Dakota
Harold Louis Wallette, also known as *
Hank Wallette,                        *    [UNPUBLISHED]
                                      *
            Appellant.                *
                                 ___________

                             Submitted: November 7, 2003

                                  Filed: November 26, 2003
                                   ___________

Before RILEY, McMILLIAN, and SMITH, Circuit Judges.
                            ___________

PER CURIAM.

      Harold Louis Wallette appeals from the final judgment entered in the District
Court for the District of North Dakota after a jury found him guilty of conspiring to
manufacture methamphetamine, in violation of 21 U.S.C. § 846 (Count 1);
manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2 (Count 2); possessing methamphetamine, in violation of 21 U.S.C. § 844(a)
(Count 3); being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (e), and 2 (Count 4); using and carrying a short-barreled
shotgun during and in relation to the manufacture of methamphetamine, in violation
of 18 U.S.C. § 924(c)(1)(A), (c)(1)(B)(i) (Count 5); and possessing an unregistered
shotgun with a barrel length of 11.75 inches, in violation of 26 U.S.C. §§ 5861(d) and
5871 (Count 6). The district court sentenced Wallette to “a total of 480 months”
imprisonment and 3 years supervised release. On appeal, counsel has moved to
withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing
for reversal that the district court erred in denying a motion to suppress, and that
Wallette received ineffective assistance of counsel. In his pro se supplemental brief,
Wallette argues additionally that his sentence violated Apprendi v. New Jersey, 530
U.S. 466 (2000), that there was insufficient evidence to support a conviction under
sections 922(g)(1) and 924(e), and that he was misled by the court’s statement that
he could receive a 50% credit for good behavior. For the reasons discussed below,
we affirm the judgment of the district court as modified.

      We conclude the arguments concerning the motion to suppress are unavailing
because Wallette did not move to suppress until after the deadline for doing so had
passed, and he did not establish good cause for his untimely motion. See Fed. R.
Crim. P. 12(b)(3), (e); United States v. Blue, 255 F.3d 609, 612 (8th Cir. 2001) (per
curiam). We further conclude that Wallette’s ineffective assistance claim should be
brought in a 28 U.S.C. § 2255 motion. See United States v. Soriano-Hernandez, 310
F.3d 1099, 1105 (8th Cir. 2002.)

      We reject Wallette’s pro se arguments. The jury was not required to find that
he was manufacturing injectable methamphetamine for him to be sentenced to more
than 5 years imprisonment, see 21 U.S.C. § 841(b)(1)(C); the evidence at trial--that
Wallette had 3 prior felony convictions, he had purchased a shotgun from a witness,
and the shotgun had been manufactured in Brazil and imported at Miami--supported
his conviction under section 922(g), see United States v. Boyd, 180 F.3d 967, 978
(8th Cir. 1999); section 924(e) is a sentencing enhancement, which did not require
findings by the jury, see United States v. Campbell, 270 F.3d 702, 707-08 (8th Cir.
2001), cert. denied, 535 U.S. 946 (2002); and the district court’s misstatement as to

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the amount of possible good-time credit did not affect Wallette’s substantial rights,
see United States v. Kempis-Bonola, 287 F.3d 699, 702 (8th Cir.) (standard of
review), cert. denied, 537 U.S. 914 (2002).

       Having reviewed the record under Penson v. Ohio, 488 U.S. 75, 80 (1988), we
find that the district court erred in sentencing Wallette to a total of 480 months
imprisonment and 3 years supervised release, instead of pronouncing separate
sentences for each count. See U.S.S.G. § 5G1.2, comment. (n.1). Because the
sentence imposed exceeded the statutory maximums for Counts 1-3 and 6, see 21
U.S.C. §§ 841(b)(1)(C), 844; 26 U.S.C. § 5871, and exceeded the supervised release
maximum for Count 3, see 18 U.S.C. § 3583(b), we find that this was plain error. See
United States v. Maynie, 257 F.3d 908, 918-19 (8th Cir. 2001), cert. denied, 534 U.S.
1151, 535 U.S. 944 (2002). Thus, we modify the judgment to impose concurrent
sentences of 240 months on Counts 1 and 2, 12 months on Count 3, 360 months on
Count 4, and 120 months on Count 6, and a consecutive sentence of 120 months on
Count 5. We further modify the judgment to impose concurrent supervised release
terms of 1 year on Count 3 and 3 years on the remaining counts. See 18 U.S.C.
§ 924(c); U.S.S.G. §§ 5G1.1(a); 5G1.2, comment. (n.3).

       We find no other nonfrivolous issues. Accordingly, we grant counsel’s motion
to withdraw, and we affirm the judgment as modified.
                       ______________________________




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