Opinion
No. 05-10174.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed May 28, 2008.
Bruce M. Ferg, Esq., Gerard M. Guerin, Office of the U.S. Attorney, Tucson, AZ, for Plaintiff-Appellee.
Hortencia Delgadillo, Esq., Tucson, AZ, for Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona, Frank R. Zapata, District Judge, Presiding. D.C. No. CR-03-01851-FRZ.
Before: PREGERSON, TASHIMA, and GOULD, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Rito Castro-Parra appeals from the 72-month sentence imposed following his guilty-plea conviction for possession with intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 841, conspiracy to possess with intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841, 846, importation of 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 952, 960, and conspiracy to import 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 952, 960, and 963. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Castro-Parra contends that the district court misunderstood its discretion to impose a lower sentence based on aberrant conduct. The district court did not procedurally err in this regard. See Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).
Castro-Parra also contends that the district court erred by enhancing his sentence using a drag quantity that was neither admitted by him, nor proven to a jury beyond a reasonable doubt. This contention is foreclosed by United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir. 2006). We conclude that the district court's drug quantity finding was supported by a preponderance of the evidence. See id. AFFIRMED.