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NOT FOR PUBLICATION JUL 26 2012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
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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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