Cabaccang

SUPPLEMENTAL MEMORANDUM ****

Roy Cabaccang, James Cabaccang, and Richard Cabaccang appeal their conviction and sentences arising out of a drug conspiracy. 1 On July 5, 2001, we filed a memorandum disposition disposing of all of the issues other than those under Apprendi. We now decide the Apprendi issues.

(1) Roy, James, and Richard all claim that 21 U.S.C. §§ 841 & 960 are unconstitutional on their face under Apprendi. We have already rejected that contention. See United States v. Mendoza-Paz, 286 F.3d 1104, 1110, 1114 (9th Cir.2002) (§ 960 is constitutional); United States v. Buck-land, 289 F.3d 558 (9th Cir.2002) (en banc) (§ 841 is constitutional).

(2) Roy essentially concedes that Ap-prendi does not require vacation of his sentence. We agree.

(3) James asserts error under Apprendi on the basis that the issue of drug quantity was not submitted to the jury. Because he did not object at trial, we apply the plain error standard. See Buckland, 277 F.3d at 1178. That means that we must decide whether there was error; if so, whether it was plain; and if so, whether it affected substantial rights. See United States v. Olano, 507 U.S. 725, 732-35 , 113 S.Ct. 1770, 1777-78 , 123…