United States v. Latu

MEMORANDUM **

Ofahemooni Latu appeals the conviction and 168-month sentence imposed after a jury found her guilty of distributing cocaine in violation of 21 U.S.C. § 841. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Latu contends that the district court erred by applying a preponderance of the evidence standard, rather than a clear and convincing evidence standard, to enhance her sentence, pursuant to U.S.S.G. § lB1.3(a)(2), for distribution of an additional uncharged quantity of cocaine. Because Latu raises this issue for the first time on appeal, we review only for plain error. See United States v. Jordan, 256 F.3d 922, 926 (9th Cir. 2001).

Whether or not the district court should have applied a clear and convincing standard is immaterial in this case because of the court’s credibility determination and conservative estimate of drug quantity. See id. at 930 (requiring a showing of prejudice on plain error review).

Latu also challenges the constitutionality of 21 U.S.C. § 841(a) in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This contention is foreclosed by our decision in United States v. Buckland, 289 F.3d 558, 559 (9th Cir. 2002) (en banc) (as amended) (upholding facial constitutionality of § 841).

AFFIRMED.