
    UNITED STATES of America, Plaintiff—Appellee, v. Alberto BELTRAN-DELGADO, Defendant—Appellant.
    No. 00-50263.
    D.C. No. CR-99-03172-MJL.
    United States Court of Appeals, Ninth Circuit.
    Submitted Jan. 18, 2002.
    
    Decided Jan. 29, 2002.
    Before HUG, GRABER, and W. FLETCHER, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Defendant Alberto Beltran-Delgado appeals his conviction and sentence, following a jury trial, on one count of conspiracy to distribute methamphetamine and one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). He makes two arguments.

First, Defendant argues that § 841 is facially unconstitutional. That argument now is foreclosed by United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc).

Second, Defendant argues that the questions of drug type and quantity had to be submitted to the jury under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). With respect to drug type, the jury was instructed that it had to find beyond a reasonable doubt that Defendant intentionally delivered methamphetamine to Rodriguez. With respect to quantity, Defendant was sentenced to 121 months in custody, which is less than the 20-year statutory maximum for possession with intent to distribute any measurable quantity of methamphetamine. 21 U.S.C. § 841(b)(1)(C). In these circumstances, he is not entitled to relief. United States v. Scheele, 231 F.3d 492, 497 n. 2 (9th Cir. 2000).

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