Opinion
Argued and Submitted March 12, 2001.
Submission Withdrawn May 22, 2001.
Resubmitted in part July 5, 2001.
We resubmitted this case on all issues other than those under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Decided Resubmitted on remaining issues June 4, 2002.
We resubmit this case on the previously unsubmitted issues under Apprendi.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Guam, John S. Unpingco, District Judge, Presiding.
Before FERNANDEZ and KLEINFELD, Circuit Judges, and MOSKOWITZ, District Judge.
The Honorable Barry T. Moskowitz, District Judge for the Southern District of California, sitting by designation.
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.
Roy Cabaccang, James Cabaccang, and Richard Cabaccang appeal their conviction and sentences arising out of a drug conspiracy. On July 5, 2001, we filed a memorandum disposition disposing of all of the issues other than those under Apprendi. We now decide the Apprendi issues.
For simplicity, the members of the Cabaccang family will be referred to only by their first names.
(1) Roy, James, and Richard all claim that 21 U.S.C. §§ 841 & 960 are unconstitutional on their face under Apprendi. We have already rejected that contention. See United States v. Mendoza-Paz, 286 F.3d 1104, 1110, 1114 (9th Cir.2002) (§ 960 is constitutional); United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc) (§ 841 is constitutional).
(2) Roy essentially concedes that Apprendi does not require vacation of his sentence. We agree.
(3) James asserts error under Apprendi on the basis that the issue of drug quantity was not submitted to the jury. Because he did not object at trial, we apply the plain error standard. See Buckland, 277 F.3d at 1178. That means that we must decide whether there was error; if so, whether it was plain; and if so, whether it affected substantial rights. See United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993); see also United States v. Cotton,
Page 235.
--- U.S. ----, 122 S.Ct. 1781, 1785, --- L.Ed.2d ---- (2002). If the answer to each of those questions is yes, we must then decide if the error " 'seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.' " Id. at 736, 113 S.Ct. at 1179 (citation omitted). There can be no doubt that there was error in this case and that it was plain. But James' case founders because, for example, there is no contest that the amounts in the packages that James was convicted of sending amounted to far more than 50 grams of methamphetamine, and that placed him in the 10 years to life statutory range. See 21 U.S.C. §§ 841(b)(1)(A), 960(b)(1). Thus, "it appears beyond all doubt that the Apprendi error in this case did not affect the outcome of the proceedings, and, accordingly, did not affect [James'] substantial rights." Buckland, at 1184. "Finally, even were we to assume that the error here did affect substantial rights, we would affirm nonetheless because, given the evidence and the record ..., the error did not 'seriously affect the fairness, integrity, or public reputation of judicial proceedings.' " Id. at 1178 (citation omitted).
We, of course, recognize that James contests his guilt. That, however, does not affect the quantity, and it is quantity that we must focus upon here.
(3) Richard's claim founders for the same basic reason that James' does. As to Richard, there is no real contest that, if guilty at all, his involvement was in far more than the minimum amount required to expose him to a life sentence under the relevant statutes. Here, too, we would not exercise our discretion to reverse for Apprendi error in any event.
The evidence of that excess was overwhelming to say the least.
AFFIRMED.