Aguilera

SUPPLEMENTAL MEMORANDUM *

By memorandum disposition dated December 28, 2001, we deferred resolution of Aguilera’s claim that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) pending en banc resolution of United States v. Buckland, No. 99-30285. This court issued a decision in Buckland on January 18, 2002, reported at 277 F.3d 1173 (9th Cir.2002) (en banc), and we now turn to Aguilera’s remaining arguments.

Aguilera first argues that 21 U.S.C. § 841 is facially unconstitutional. This argument was rejected in Buckland, 277 F.3d at 1178-83 .

Aguilera next argues that his sentence under 21 U.S.C. § 841 is unconstitutional as applied. He claims that because the quantity of drugs for which he was convicted was not submitted to the jury and proved beyond a reasonable doubt, he could only be sentenced under § 841(b)(1)(C), not § 841(b)(1)(A). However, the sentence actually imposed, twenty years, did not exceed the statutory maximum for the section under which Aguilera argues he should have been sentenced, § 841(b)(1)(C) (authorizing a maximum sentence of 30 years following a prior conviction for a felony drug…