Gutierrez-Elenes

MEMORANDUM **

Ramon Gutierrez-Elenes, Jr., appeals his guilty-plea conviction and 24r-month sentence for importation of marijuana, in violation of 21 U.S.C. §§ 952 , 960. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part, dismiss in part.

Gutierrez-Elenes first contends the district court erred by denying his request for downward departure based upon a combination of factors involving unusual family circumstances. Specifically, Gutierrez-Elenes argues it is unclear from the silent record whether the district court recognized that it had the authority to depart. The district court has no obligation to affirmatively state that it has authority to depart when it sentences within the guideline range instead of departing. United States v. Garciar-Garcia, 927 F.2d 489, 491 (9th Cir.1991) (per curiam). Failure to depart, when the record is silent on the issue of authority and the sentence imposed is within the applicable guideline range, is lawful and cannot be appealed on that basis. Id.

Gutierrez-Elenes next contends that under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), 21 U.S.C. § 960 is unconstitutional. This argument is…