                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 19 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10137

              Plaintiff - Appellee,              D.C. No. 4:11-cr-01349-DCB-
                                                 HCE-1
  v.

ROBERTO CASTRO-LOPEZ,                            MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                      Argued and Submitted March 14, 2014
                           San Francisco, California

Before: FISHER and BERZON, Circuit Judges, and QUIST, Senior District
Judge.**

       Roberto Castro-Lopez was convicted of violating 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(ii)(II), 952(a), 960(a)(1), 960(b)(1)(b)(ii), and received the minimum

sentences required by statute.   He appeals those sentences, arguing that he should

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
have been sentenced under the “safety valve” provision, 18 U.S.C. § 3553(f), and

that the district court’s contrary conclusion relied on the fact of his prior juvenile

adjudications, a fact that constitutionally should have been proven to a jury under

United States v. Tighe, 266 F.3d 1187, 1194–95 (9th Cir. 2001), and United States

v. Washington, 462 F.3d 1124, 1141–42 (9th Cir. 2006). Where, as here, Castro

failed to object to the constitutionality of his sentence before the district court, we

review for plain error. See, e.g., United States v. Chavez, 611 F.3d 1006, 1009 (9th

Cir. 2010) (per curiam).

      Tighe, 266 F.3d at 1194–95, and Washington, 462 F.3d at 1141–42, require

that the fact of a prior non-jury juvenile adjudication be proven to a jury, or

admitted by a defendant, only where Apprendi v. New Jersey, 530 U.S. 466 (2000),

and its progeny apply. United States v. Labrada-Bustamante, 428 F.3d 1252, 1263

(9th Cir. 2005), affirmed the constitutionality of the safety valve provision

notwithstanding that provision’s reliance on judicial factfinding. If there is any

tension between Labrada-Bustamante and Alleyne v. United States, 133 S. Ct.

2151 (2013) — which we do not decide — it does not represent the sort of “clearly

irreconcilable” conflict that would allow us to overrule Labrada-Bustamante, see

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), on plain error

review.


                                           2
AFFIRMED.




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