Chavez

MEMORANDUM **

Appellant (“Chavez”) challenges his conviction after a jury trial for conspiracy to manufacture, distribute and to possess with the intent to distribute methamphetamine. Chavez argues that there was a fatal variance between the indictment and proof because a single conspiracy was charged and multiple conspiracies were proven at trial. Chavez also challenges his 360 month sentence, arguing that the provisions under which he was sentenced, 21 U.S.C. §§ 841 (b)(1)(A) & (B), are facially unconstitutional. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

Subsequent to the filing of briefs in this appeal, an en banc panel of this court decided that 21 U.S.C. §§ 841 (b)(1)(A) & (B) are constitutional. United States v. Buckland, 277 F.3d 1173, 1187 (9th Cir. 2002). Chavez’ argument on this score must therefore fail.

As to Chavez’ variance claim, viewing the evidence in the light most favorable to the prosecution, the evidence was sufficient to permit a rational trier of fact to find the essential elements of a single conspiracy beyond a reasonable doubt. We therefore reject Chavez’ variance argument. United States v. Duran, 189 F.3d 1071, 1078 (9th…