United States v. King

32 F. App'x 422

Opinion

MEMORANDUM²

Michael D. King appeals the five-year sentence imposed following his conviction by jury trial for one count of conspiracy to manufacture and distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846, and one count of possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

King challenges the legality of his five-year mandatory minimum sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), on the ground that the jury was not instructed to find the quantity of marijuana sufficient to trigger the mandatory minimum. We review challenges to the legality of a sentence de novo. United States v. Tighe, 266 F.3d 1187,1190 (9th Cir.2001).

Because King’s five-year sentence does not exceed the five-year statutory maximum applicable to the lowest distribution quantity of marijuana, see 21 U.S.C. § 841(b)(1)(D), Apprendi does not affect his case. See United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir. 2001) (limiting Apprendi’s application to “consideration of facts in sentencing enhancement beyond the statutory maximum” ) (emphasis in original).

King also raises two Apprendi challenges to the constitutionality of 21 U.S.C. §§ 841(b)(l)(B)(vii) and 841(a). King’s contentions are foreclosed by our recent decision in United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc) (upholding constitutionality of 21 U.S.C. §§ 841 in light of Apprendi).

AFFIRMED.

2 . 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.