Crawford

MEMORANDUM **

Michael Crawford appeals his sentence of 168 months in prison and five years supervised release following his conviction for conspiracy to distribute cocaine base and distribution of cocaine base, 21 U.S.C. §§ 841 (a)(1) & 846. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review for abuse of discretion the district court’s application of the Sentencing Guidelines but review for clear error its factual determination that Crawford is not a minimal or minor participant in the offense. United States v. Rodriguez-Cruz, 255 F.3d 1054, 1058, 1060 (9th Cir.2001). We affirm.

Although the jury did not expressly determine drug type or quantity, Crawford’s sentence does not implicate Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because it is below the statutory maximum. See United States v. Sua, 307 F.3d 1150, 1154 (9th Cir.2002); see also United States v. Okafor, 285 F.3d 842, 847 (9th Cir.) (recognizing that cocaine base and cocaine hydrochloride have the same statutory maximum), cert, denied, — U.S. -, 123 S.Ct. 475 , — L.Ed.2d-, 71 U.S.L.W. 3283 (U.S. Oct. 21, 2002) (No. 01-10851).

The district court did not clearly err by…