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NOT FOR PUBLICATION AUG 01 2013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.
3 12-10398