United States v. Perez-Aguilar

41 F. App'x 110

Opinion

SUPPLEMENTAL MEMORANDUM

*

Jose Trinidad Perez-Aguilar appeals his conviction and sentence for one count of conspiracy to distribute methamphetamine. See 21 U.S.C. §§ 841, 846. We affirm.

(1) On June 21, 2001, we vacated submission as to Perez’s claims under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). On that same date, we decided his other claim.

(2) Perez attacks the failure to submit the issues of type and quantity of the drug to the jury. That was error, but it was not a plain error which requires reversal. See id. at 490, 120 S.Ct. at 2362-63; United States v. Buckland, 289 F.3d 558, 568-70 (9th Cir.), cert. denied, — U.S.-, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002). His conspiracy to distribute a quantity of methamphetamine placed him in the sentencing range of up to 30 years of imprisonment and up to 6 years of supervised release. See 21 U.S.C. § 841(b)(1)(C). His sentence was below those maxima. It is true that the quantity determined by the district court elevated the statutory mini-ma, but Apprendi does not invalidate that increase. See Harris v. United States, — U.S. -, 122 S.Ct. 2406, 2419-20, - L.Ed.2d-(2002).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.