Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding.
Before HALL, KOZINSKI, and McKEOWN, Circuit Judges.
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.
Hernandez first argues that the district court erred when it concluded that it did not have discretion to grant a 1-level departure pursuant to U.S. S.G. § 3B1.2. This provision does not contemplate or authorize such a departure. Because Hernandez was not qualified for a departure under § 3B1.2, the district court was also without discretion to consider his request for a departure pursuant to § 2D1.1. See U.S. S.G. § 2D1.1, cmt. n. 14.
Hernandez also claims that he is entitled to a departure under § 3E1.1, which requires a defendant to "clearly demonstrate[ ] acceptance of responsibility for his offense." Only in "rare situations [will] a defendant ... clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial." U.S. S.G. § 3E1.1, cmt. n. 2. Hernandez's inculpatory statements evince no contrition or remorse for his actions. See United States v. Connelly, 156 F.3d 978, 982 (9th Cir.1998) (holding that "a failure to demonstrate contrition and remorse weighs against a finding of acceptance of responsibility"). Considering that "the sentencing judge is entitled to great deference on review," U.S. S.G. § 3E1.1, cmt. n. 5, we cannot conclude that the district court clearly erred in denying a departure.
Finally, Hernandez claims that he should be resentenced pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000) (overruled on other grounds), we held that, pursuant to Apprendi, an individual cannot be sentenced above the "prescribed statutory maximum," which is the maximum punishment to which the defendant could be exposed "solely under the facts found by the jury."
Page 814.
21 U.S.C. § 841(b)(1)(C) provides a maximum sentence of 20 years' incarceration and indefinite supervised release without regard to a finding of any particular drug amount. Because Hernandez's sentence of 235 months does not exceed the prescribed statutory maximum, we affirm his sentence.
AFFIRMED.