Gomez-Solano

MEMORANDUM **

Dario Gomez-Solano appeals his guilty plea conviction and ten-month sentence for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 , and we affirm.

Gomez-Solano contends that under Apprendi v. New Jersey, 530 U.S. 466, 490 , *441 120 S.Ct. 2848 , 147 L.Ed.2d 435 (2000) and United States v. Nordby, 225 F.3d 1053, 1058-59 (9th Cir.2000), overruled in part by Buckland, 277 F.3d 1173, 1182 (9th Cir.2002) (en banc) (overruling Nordby’s conclusion that Congress committed drug quantity to the sentencing judge to decide by a preponderance of the evidence), 21 U.S.C. § 841 is unconstitutional. GomezSolano’s contention, however, is foreclosed by our decision in Buckland, *1-6.

Moreover, Gomez-Solano’s 10-month sentence is well below the 5-year statutory maximum for possession of an undetermined amount of marijuana with intent to distribute. See § 841(b)(1)(D); Nordby, 225 F.3d at 1059 . Where a defendant’s actual sentence falls below the statutory maximum for the offense to which he pleaded guilty, he is not prejudiced for purposes of Apprendi See United States v.…