
    UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Lucas Guadalupe Leon REYES, Defendant-Appellant.
    No. 00-50480.
    D.C. No. CR 99-1216 NMM.
    United States Court of Appeals, Ninth Circuit.
    Submitted Aug. 6, 2002.
    
    Decided Aug. 9, 2002.
    
      Before REINHARDT, TROTT, and TASHIMA, Circuit Judges.
    
      
       The panel unanimously finds this case appropriate for decision without oral argument.
    
   MEMORANDUM

Lucas Guadalupe Leon Reyes appeals his convictions and sentence for conspiracy to possess with intent to distribute more than 100 grams of heroin, in violation of 21 U.S.C. § 846, and possession with intent to distribute more than 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1). Reyes was sentenced to 85 months imprisonment, four years of supervised release, and a special assessment of $200. The facts and prior proceedings are known to the parties; they are not recited in our disposition, except as necessary. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

Reyes’ argument that the penalty provisions in the drug statute, 21 U.S.C. § 841(b), are facially unconstitutional in light of the constitutional rule recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was recently rejected by this court. United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc). Accordingly, this argument is foreclosed.

Reyes’ further argument that, if § 841 is unconstitutional, so also must be his 85-month guideline sentence, is similarly unavailing. Reyes argues that his sentence was somehow “driven by” the five-year mandatory minimum sentence in the allegedly unconstitutional statute. The Supreme Court recently held, however, that Apprendi did not render mandatory minimum sentences unconstitutional. See Harris v. United States, — U.S. -, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Moreover, even if there were any Apprendi error in Reyes’ sentence, the error would be harmless because the sentence is below the statutory maximum. See United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir.2001).

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 Cir. R. 36-3.
     