Tubbs

MEMORANDUM *

Appellant Kevin Tubbs appeals a 151-month sentence imposed following his guilty plea by negotiated agreement to a *68 56-count Information arising out of multiple arsons in the Pacific Northwest. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

The district court did not violate Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), when it applied the terrorism enhancement, see United States Sentencing Guidelines (“U.S.S.G”) § 3A1.4 (2000), to the United States Forest Service Oakridge Ranger Station arson after concluding that Tubbs created a serious risk of personal injury and intended to retaliate against government conduct. 1 Tubbs concedes that he failed to raise his Apprendi challenge before the district court. We therefore review for plain error. See United States v. Nordby, 225 F.3d 1053, 1060 (9th Cir. 2000), overruled on other grounds by United States v. Buckland, 289 F.3d 558 (9th Cir.2002).

Apprendi is not implicated unless the district court sentences a defendant above the statutory maximum. United States v. Toliver, 351 F.3d 423, 433 (9th Cir.2003). Although the calculated guideline range initially exceeded the…