                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10068

              Plaintiff - Appellee,              D.C. No. 4:08-cr-01208-FRZ-
                                                 HCE-1
  v.

JOSE PAUL GASTELLUM-CHAVEZ,                      MEMORANDUM *
AKA Juan Chavez-Rodriguez,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                 Frank R. Zapata, Senior District Judge, Presiding

                             Submitted July 16, 2012 **
                             San Francisco, California

Before: FERNANDEZ and PAEZ, Circuit Judges, and SETTLE, District Judge.***

       Jose Gastellum-Chavez appeals from the 156-month sentence imposed by



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Benjamin Hale Settle, United States District Judge for
the Western District of Washington, sitting by designation.
the district court following his guilty plea to one count of conspiracy to possess

with intent to distribute 1,000 kilograms or more of marijuana, in violation of 21

U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(vii), and two counts of possession with

intent to distribute 1,000 kilograms or more of marijuana and aiding and abetting

in such offenses, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii) and 18

U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Gastellum-Chavez contends that the district court plainly erred by relying on

the drug quantities attributed to the conspiracy in the Presentence Investigation

Report (“PSR”) to calculate the base offense level under U.S.S.G. § 2D1.1(c)(2).

During the plea colloquy, Gastellum-Chavez admitted that the offenses to which he

pleaded guilty involved 1,000 kilograms or more of marijuana. His admissions

were sufficient for purposes of establishing the statutory maximum sentence of life

imprisonment under Apprendi v. New Jersey, 530 U.S. 466 (2000). See 21 U.S.C.

§ 841(b)(1)(A)(vii). In determining the advisory sentencing guidelines range, the

district court properly relied on the unchallenged PSR to find by a preponderance

of the evidence that 12,906 kilograms of marijuana were attributed to the

conspiracy. United States v. Guzman-Mata, 579 F.3d 1065, 1072 n.7 (9th Cir.

2009). The district court’s reliance on the drug quantities included in the PSR did

not violate Apprendi because Gastellum-Chavez’s sentence was well within the


                                          2
statutory maximum sentence of life imprisonment. United States v. Plancarte-

Alvarez, 366 F.3d 1058, 1064–65 (9th Cir. 2004).

       Gastellum-Chavez also argues that the district court plainly erred by failing

to sua sponte grant an additional one-level reduction for his acceptance of

responsibility under U.S.S.G. § 3E1.1(b). This contention lacks merit because he

pleaded guilty on the eve of trial without a plea agreement and he retained his right

to appeal. See U.S.S.G. § 3E1.1(b) cmt. n.6 (2010) (explaining that “the defendant

must have notified authorities of his intention to enter a plea of guilty at a

sufficiently early point in the process so that the government may avoid preparing

for trial”); United States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009) (holding

that “the allocation and expenditure of prosecutorial resources for the purposes of

defending an appeal is a rational basis for declining to move for the third reduction

point.”).

       AFFIRMED.




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