Valencia

MEMORANDUM **

Armando Valencia appeals his jury-trial conviction and 135-month sentence for conspiracy to possess with intent to distribute, and to distribute methamphetamine, and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Valencia contends that a single comment made by the government during closing arguments violated his Fifth Amendment right not to testify. We review alleged prosecutorial misconduct during closing arguments for harmless error, United States v. Sanchez, 176 F.3d 1214, 1218 (9th Cir. 1999), and find none. See United States v. Sayakhom, 186 F.3d 928, 943 (9th Cir.) (concluding that reversal is justified “only if it appears more probable than not that prosecutorial misconduct materially affected the fairness of the trial”), amended by 197 F.3d 959 (9th Cir.1999).

Valencia also contends that 21 U.S.C. § 841 (b)(1)(A)(viii) is unconstitutional. This contention is foreclosed by United States v. Buckland, 289 F.3d 558, 572 (9th Cir.) (en banc) cert, denied, — U.S.-, 122 S.Ct. 2314 , 152 L.Ed.2d 1067 (2002).

Valencia’s contention that his 135-month…