United States v. Gonzalez

44 F. App'x 826

Opinion

MEMORANDUM²

We have jurisdiction under 28 U.S.C. § 1291. We affirm.

A. Constitutionality of 21 U.S.C. § 960

Gonzalez claims that 21 U.S.C. § 960 is unconstitutional because it permits a judge to increase the maximum penalties for drug violations without requiring that the factors which cause such increases, drug type and quantity, be alleged in the indictment and determined beyond a reasonable doubt by a jury as required under Apprendi v. New Jersey.³ We determined that § 960 is constitutional in United States v. Mendoza-Paz.4 Thus, Gonzalez’s argument fails.

B. Constitutionality of Waiver in Proposed Plea Agreement

The proposed plea agreement required Gonzalez to waive his rights to impeachment and affirmative defense information that the Government would be required to provide if the case proceeded to trial. Gonzalez argues that the plea agreement was unconstitutional because of this waiver. The Supreme Court recently decided that the Constitution does not require the Government to disclose material impeachment evidence or affirmative defense information prior to entering into a plea agreement with a criminal defendant.⁵ Thus, plea agreements containing such a waiver are valid.

AFFIRMED.

2 . 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.

3 . See 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

4 . 286 F.3d 1104, 1107 (9th Cir.2002).

5 . United. States v. Ruiz, No. 01-595, slip op. at 9 (U.S. June 24, 2002).