Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

MEMORANDUM^** 

Appellant John Louis Blonski appeals his sentence of 121 months for possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) (1). He claims that the ambiguous language of the statute as it relates to mandatory minimum terms requires that his sentence follow the rule of lenity. Though appellant's construction may well be proper, we need not address it because the sentence fell within the appropriate Sentencing Guidelines range. We therefore affirm.

STANDARD OF REVIEW

We review de novo the application of the Sentencing Guidelines. United States v. Sanchez-Lopez, 879 F.2d 541, 558 (9th Cir. 1989).

DISCUSSION

In providing minimum mandatory sentences for drug possession, 21 U.S.C. § 841 contains conflicting language about the quantity of methamphetamine required to invoke certain penalties. See 21 U.S.C. §§ 841(b) (1) (A) (viii) and (B) (viii). The first section states that manufacture or distribution of more than 100 grams of a mixture containing methamphetamine calls for a ten-year mandatory minimum, and the second says five years for the same amount is proper. Id. Appellant argues that the rule of lenity requires that we use the lower figure.

This argument may be very well taken; however, we need not reach it. In this case, the presentence report recommended a sentence of 121 months, based on the Sentencing Guidelines range of 121-151 months for a defendant with an offense level of 32 and a criminal history category of I. The district court adopted this and sentenced appellant to a term of 121 months. Whether the mandatory minimum is five years or ten years is superfluous here because the sentence was within the correct guidelines range.

Because defendant never raised on appeal the issue of whether this was an incorrect guidelines range, we do not address that question.

AFFIRMED.