United States v. Contreras-Alvardo

35 F. App'x 694

Opinion

MEMORANDUM

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Jose Contreras-Alvarado appeals his conviction and sentence of time served and two years of supervised release, imposed after pleading guilty to importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Contreras-Alvarado contends the district court erred by denying his motion to dismiss the indictment, in which he challenged the constitutionality of 21 U.S.C. § 960 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 recent decisions in United States v. Mendoza-Paz, 286 F.3d 1104, 1110 (9th Cir.2002) (upholding facial constitutionality of § 960) and United States v. Varela-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir. 2002) (same, as to § 952). Moreover, the district court properly imposed a sentence based upon a drug type and quantity to which Contreras-Alvarado admitted in his guilty plea. See Mendoza-Paz, 286 F.3d at 1110 (finding no error where district court determined drug quantity by preponderance of evidence and sentenced defendant below statutory maximum).

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 Circuit Rule 36-3.