Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding.
Before HUG, O'SCANNLAIN, and TASHIMA, Circuit Judges.
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.
Delores Jackson appeals pro se the 120-month sentence imposed following our remand for re-sentencing in United States v. Jackson, 167 F.3d 1280, 1285-86 (9th Cir.1999). Jackson was convicted, after a jury trial, of one count of conspiracy (21 U.S.C. § 846), fifteen counts of furnishing false Dilaudid prescription information (21 U.S.C. § 843(a)(4)(A)), and fifteen counts of acquiring Dilaudid by fraud (21 U.S.C. § 843(a)(3)). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, United States v. Daas, 198 F.3d 1167, 1180 (9th Cir.1999), and we affirm.
Jackson's contention that she had a reasonable expectation of finality in her original sentence lacks merit because her sentence was illegal and immediately challenged by the government. See United States v. Edmonson, 792 F.2d 1492, 1496-97 (9th Cir.1986).
Contrary to Jackson's contentions, the district court clearly knew that it had the discretion to downward depart because it departed downward 13 levels and expressly stated that it would follow this court's decision in Daas, 198 F.3d at 1180-81 (recognizing that equalizing sentencing disparities maybe a proper ground for downward departure).
Page 813.
Because Jackson received a sentence below the statutory maximum for a violation of section 843, this case does not implicate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Finally, Jackson's contention that section 841 is facially unconstitutional is foreclosed by our decision in United States v. Buckland, 289 F.3d 558, 563-64 (9th Cir.2002) (en banc).
We deny Jackson's request for appointment of counsel.
AFFIRMED.