Lopez

*888 MEMORANDUM *

A jury convicted Jose Luis Lopez (“Lopez”) of one count of conspiracy to possess with intent to distribute cocaine base under 21 U.S.C. §§ 841 (a)(1), (b)(1)(a) and 846, one count of possession with intent to distribute heroin under 21 U.S.C. §§ 841 (a)(1) and (b)(1)(C), one count of possession with intent to distribute heroin under 21 U.S.C. §§ 841 (a)(1) and (b)(1)(B)®, and one count of possession with intent to distribute cocaine base under 21 U.S.C. §§ 841 (a)(1) and (b)(l)(A)(iii). Lopez appeals the sentence imposed under the career offender provision of the United States Sentencing Guidelines (“U.S.S.G.”), § 4B1.1. Lopez also challenges the district court’s failure to grant a downward departure. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and we affirm.

I.

Lopez first contends that the government and the district court failed to comply with the procedural requirements of 21 U.S.C. § 851 and therefore the district court erred in applying the offender enhancement under § 4B1.1. 1 Lopez’s argument is foreclosed by our decision in United States v. McDougherty, 920 F.2d 569 (9th Cir.1990). There we held that § 851 “applies when the…