
    UNITED STATES of America, Plaintiff-Appellee, v. Armando VALENCIA, Defendant-Appellant.
    No. 01-10167.
    D.C. No. CR-99-00138-ECR.
    United States Court of Appeals, Ninth Circuit.
    Submitted Oct. 7, 2002.
    
    Decided Oct. 11, 2002.
    Before FERNANDEZ, GRABER, and GOULD, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Armando Valencia appeals his jury-trial conviction and 135-month sentence for conspiracy to possess with intent to distribute, and to distribute methamphetamine, and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Valencia contends that a single comment made by the government during closing arguments violated his Fifth Amendment right not to testify. We review alleged prosecutorial misconduct during closing arguments for harmless error, United States v. Sanchez, 176 F.3d 1214, 1218 (9th Cir. 1999), and find none. See United States v. Sayakhom, 186 F.3d 928, 943 (9th Cir.) (concluding that reversal is justified “only if it appears more probable than not that prosecutorial misconduct materially affected the fairness of the trial”), amended by 197 F.3d 959 (9th Cir.1999).

Valencia also contends that 21 U.S.C. § 841(b)(1)(A)(viii) is unconstitutional. This contention is foreclosed by United States v. Buckland, 289 F.3d 558, 572 (9th Cir.) (en banc) cert, denied, — U.S.-, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002).

Valencia’s contention that his 135-month sentence is unlawful under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), also fails. Because Valencia’s sentence is within the 20-year statutory maximum allowed when a drug quantity is not determined beyond a reasonable doubt by a jury, 21 U.S.C. § 841(b)(1)(C),-there was no plain error. See Antonakeas, 255 F.3d at 727-28.

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     