United States v. Aguilera

33 F. App'x 297

Opinion

SUPPLEMENTAL MEMORANDUM

Footnotes

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By memorandum disposition dated December 28, 2001, we deferred resolution of Aguilera’s claim that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) pending en banc resolution of United States v. Buckland, No. 99-30285. This court issued a decision in Buckland on January 18, 2002, reported at 277 F.3d 1173 (9th Cir.2002) (en banc), and we now turn to Aguilera’s remaining arguments.

Aguilera first argues that 21 U.S.C. § 841 is facially unconstitutional. This argument was rejected in Buckland, 277 F.3d at 1178-83.

Aguilera next argues that his sentence under 21 U.S.C. § 841 is unconstitutional as applied. He claims that because the quantity of drugs for which he was convicted was not submitted to the jury and proved beyond a reasonable doubt, he could only be sentenced under § 841(b)(1)(C), not § 841(b)(1)(A). However, the sentence actually imposed, twenty years, did not exceed the statutory maximum for the section under which Aguilera argues he should have been sentenced, § 841(b)(1)(C) (authorizing a maximum sentence of 30 years following a prior conviction for a felony drug offense). There was therefore no Apprendi violation. See United States v. Romero, 282 F.3d 683, 689-690 (9th Cir.2002).

Finally, Aguilera argues that because 21 U.S.C. § 841(b)(1)(A) contains a statutory minimum, while § 841(b)(1)(C) does not, his sentence violated Apprendi. This argument is foreclosed by United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir.2001).

AFFIRMED.

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 9th Cir. R. 36-3.