United States v. Zacarias-Ortiz

44 F. App'x 264

Opinion

MEMORANDUM

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Miguel Angel Zacarias-Ortiz appeals the judgment and sentence for one count of conspiring to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1). We have jurisdiction and we affirm.

Zacarias-Ortiz’s waiver of a jury trial was knowing and voluntary. He did not have to be advised that the jury would come from the community or that he could participate in its selection. Zacarias-Ortiz and counsel signed a written waiver, and the oral colloquy was adequate to ensure Zacarias-Ortiz’s understanding of the waiver. See United States v. Duarte-Hi-gareda, 113 F.3d 1000, 1003 (9th Cir.1997); United States v. Cochran, 770 F.2d 850, 851 (9th Cir.1985). The record reflects that an interpreter was present and assisted him. Nor is the waiver invalid in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Apprendi has nothing to do with whether the case will be tried to a jury or to the judge.

Zacarias-Ortiz’s argument that Apprendi renders 21 U.S.C. §§ 846 and 841(a)(1) facially unconstitutional is foreclosed by United States v. Buckland, 289 F.3d 558, 563-68 (9th Cir.2002) (en banc). His claim that the government was required to prove that he knew the quantity and type of the drugs involved in his offenses is foreclosed by United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002).

Zacarias-Ortiz’s as-applied challenge to his sentence under Apprendi also fails; he was not prejudiced by any Apprendi error because he was sentenced below the lowest applicable statutory maximum for methamphetamine. See United States v. Scheele, 231 F.3d 492, 497 n. 2 (9th Cir. 2000).

There was no plain error in the district court’s failure to apply a clear-and-eonvinc-ing standard in determining Zacarias-Or-tiz’s base offense level on the basis of drug quantity. “[D]ue process does not require the application of the clear and convincing standard when ‘the extent of the conspiracy caused the tremendous increase in sentence.’ ” United States v. Johansson, 249 F.3d 848, 855 (9th Cir.2001) quoting United States v. Harrison-Philpot, 978 F.2d 1520, 1522 (9th Cir.1992). The district court’s determination of drug quantity relied on the scope of the conspiracy beyond Zacarias-Ortiz’s own involvement, based on its finding that he supported and assisted in the entire scheme in order to benefit himself. That finding is not clearly erroneous.

Finally, we have reviewed the government’s in camera submission, and see no error in the district court’s decision.

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 9th Cir. R. 36-3.