                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-10362

                Plaintiff-Appellee,             D.C. No. 3:95-cr-00231-WHA-1

 v.
                                                MEMORANDUM*
HERMILO VIRELAS MACIEL, AKA
Hermilo Virelas-Maciel, AKA J. Hermilo
Virelas-Maciel,

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Northern District of California
                    William Alsup, District Judge, Presiding

                          Submitted November 18, 2019**

Before:      CANBY, TASHIMA, and CHRISTEN, Circuit Judges.

      Hermilo Virelas Maciel appeals from the district court’s judgment and

challenges the 96-month sentence imposed upon his guilty-plea conviction for

conspiracy to possess with intent to distribute and possession with intent to



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
distribute methamphetamine, in violation of 21 U.S.C §§ 841(a)(1) and 846. We

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

      Maciel first asserts that the district court violated Federal Rule of Criminal

Procedure 32 by failing to resolve contested issues at sentencing. Contrary to

Maciel’s argument, the record reflects that the district court accepted the

government’s concession that it was required to establish the drug quantity by clear

and convincing evidence and concluded that the government had met that burden.

This was sufficient to satisfy Rule 32. See United States v. Karterman, 60 F.3d

576, 583 (9th Cir. 1995) (Rule 32 is satisfied if the district court’s “statements

demonstrate that [it] considered [defendant’s] objections, but resolved the disputed

facts against him”).

      Maciel also argues that the court erred by using a base offense level of 34.

However, the government’s laboratory reports, whose accuracy and admissibility

Maciel conceded, provided clear and convincing evidence that Maciel had

possessed a quantity of methamphetamine corresponding to a base offense level of

34.1 See U.S.S.G. § 2D1.1(c)(3). Maciel’s assertion that the district court erred in


1
  Because the evidence supporting the district court’s drug quantity determination
satisfies the clear and convincing standard of proof, we assume without deciding
that this standard applies here. See United States v. Hymas, 780 F.3d 1285, 1289
(9th Cir. 2015) (preponderance of the evidence standard of proof generally applies
to facts found at sentencing, but the higher clear and convincing standard applies
when a sentencing factor has “an extremely disproportionate effect” on the
sentence) (internal quotation marks omitted).

                                           2                                    18-10362
relying on facts to which he did not admit during his change of plea hearing fails;

unlike in the cases cited by Maciel, the facts here did not affect the statutory

maximum. See United States v. Vallejos, 742 F.3d 902, 906-07 (9th Cir. 2014)

(facts supporting a sentencing enhancement need not be found by a jury or

admitted if they do not affect the statutory minimum or maximum).

      AFFIRMED.




                                           3                                       18-10362
