                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 01 2013

                                                                        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. 12-10398

               Plaintiff - Appellee,             D.C. No. 4:11-cr-04065-CKJ-
                                                 BPV-1
  v.

ISMAEL CELAYA,                                   MEMORANDUM *

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                              Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Ismael Celaya appeals from the district court’s judgment and challenges the

60-month sentence imposed following his guilty-plea conviction for possession

with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(A)(viii); and importation of methamphetamine, in violation of 21 U.S.C.

          *
             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).
§ 960(a)(1) and (b)(1)(H). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      Celaya contends that the district court violated Apprendi v. New Jersey, 530

U.S. 466 (2000), by determining that his offense involved 50 grams or more of

actual methamphetamine under 21 U.S.C. § 841(b)(1)(A)(viii). Even assuming an

Apprendi violation, however, defendant cannot obtain relief because his sentence

did not exceed the statutory maximum applicable to the relevant quantity of

methamphetamine mixture. See 21 U.S.C. § 841(a)(1)(B)(viii), United States v.

Saya, 247 F.3d 929, 942 (9th Cir. 2001) (“We have held repeatedly that a

defendant cannot obtain relief under Apprendi when his sentence does not exceed

the statutory maximum[.]”).

      Celaya also contends that the district court procedurally erred in calculating

his advisory Guideline range by relying on a lab report discussed in the

Presentence Report (“PSR”), which revealed that the methamphetamine involved

was 99 percent pure. However, the district court did not abuse its discretion in

relying on the PSR. See U.S.S.G. § 6A1.3; United States v. Alvarado-Martinez,

556 F.3d 732, 735 (9th Cir. 2009) (per curium). Moreover, the district court did

not clearly err in concluding that the offense involved actual methamphetamine.

See United States v. Dudden, 65 F.3d 1461, 1470 (9th Cir. 1995).


                                          2
      Celaya next contends that the district court committed legal error by

concluding that it lacked discretion to apply a downward adjustment based on

Celaya’s lack of control over, or knowledge of, the purity of the

methamphetamine. The record reflects that the court understood its discretion to

vary downward, but declined to do so on this basis. Moreover, review of any

departure error is subsumed in our review of the substantive reasonableness of the

sentence. See United States v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011).

      Finally, Celaya contends that his sentence is substantively unreasonable. In

light of the totality of the circumstances and the section 3553(a) sentencing factors,

Celaya’s below-Guidelines sentence is substantively reasonable. See Gall v.

United States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




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