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NOT FOR PUBLICATION.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)
Defendant was convicted in the United States District Court for the District of Hawai'i, Susan Oki Mollway, J., upon guilty plea, to possession with intent to distribute methamphetamine, and use of communication facility to facilitate the crime. Defendant appealed. The Court of Appeals held that: (1) government was not required to prove knowledge of drug type and quantity beyond reasonable doubt, and (2) no error existed under Apprendi requirement that drug quantity be proved beyond reasonable doubt.
Affirmed in part, dismissed in part.
Appeal from the United States District Court for the District of Hawaii, Susan Oki Mollway, District Judge, Presiding.
Before RYMER, T.G. NELSON, and THOMAS, Circuit Judges.
Page 512.
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.
Clyde K. Nakata appeals the 70-month sentence imposed following his guilty-plea conviction for possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1), and use of a communication facility to facilitate same, in violation of 21 U.S.C. § 843(b). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, and we dismiss in part.
Nakata contends that 21 U.S.C. § 841 is facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This argument is foreclosed by United States v. Buckland, 289 F.3d 558, 571 (9th Cir.), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002) (as amended en banc) (upholding facial constitutionality of § 841). Nakata also argues that Apprendi requires knowledge of drug type and quantity are elements of his offense. We recently rejected this argument United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (holding that Apprendi does not change the "long established rule" that the government need only show that the defendant knew he imported or possessed some controlled substance).
Nakata next challenges his sentence imposed under 21 U.S.C. § 843(b), to the extent that the sentence is determined by reference to § 841. This contention fails because § 841 is constitutional. Moreover, Apprendi is not implicated because Nakata's 70-month sentence was less than the statutory maximum of 168 months. See United States v. Garcia-Guizar, 234 F.3d 483, 489 (9th Cir.) cert. denied, 532 U.S. 984, 121 S.Ct. 1629, 149 L.Ed.2d 490 (2001)(finding no Apprendi error where defendant's sentence is less than the statutory maximum).
Nakata also contends that the district court erred by declining to grant a downward departure based on his efforts to seek rehabilitation. Because, as Nakata concedes, the district court did not rest its decision on an erroneous belief that it lacked the authority to do so, we lack jurisdiction to review the district court's discretionary decision. United States v. Morales, 898 F.2d 99, 101-02 (9th Cir.1990).
AFFIRMED in part, DISMISSED in part.