United States v. Martinez

61 F. App'x 476

Opinion

MEMORANDUM

Footnotes

•

**

Jose Martinez challenges his sentence of twenty-four months for importation of marijuana in violation of 21 U.S.C. § 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Martinez waived his right to appeal the district court’s two-point sentence enhancement under U.S. Sentencing Guideline § 3B1.4 by failing to raise it in his opening brief. ‘We ‘will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief.’ ”¹ We conclude that the circumstances of this case do not warrant deviating from this general rule.²

Although Martinez did not waive his right to challenge the constitutionality of 21 U.S.C. § 960,³ United States v. Mendoza-Paz4 forecloses his argument.⁵

His final argument, that § 960 requires knowledge of the type and quantity of the controlled substance at issue, fails as well. When drug quantity and type expose a defendant to a higher statutory maximum sentence than he would otherwise receive, knowledge and quantity must be charged and proved.⁶ In circumstances such as these, however, when drug quantity and type did not expose a defendant to a higher maximum sentence, no such requirement applies.⁷

Therefore, we AFFIRM.

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.

1

. United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992) (quoting Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir.1986)).

2

. See id. (describing exceptions to general rule).

3

. See United States v. Caperell, 938 F.2d 975, 977 (9th Cir.1991) (stating that a guilty plea does not waive jurisdictional challenges, such as challenges to a statute’s constitutionalily).

4

. 286 F.3d 1104 (9th Cir.), cert. denied - U.S. -, 123 S.Ct. 573, 154 L.Ed.2d 459 (2002).

5

. Id. at 1109-10.

6

. See United States v. Minore, 292 F.3d 1109, 1117 (9th Cir.2002), cert. denied - U.S. -, 123 S.Ct. 948, 154 L.Ed.2d 848 (2003).

7

. See id.; see also United States v. Carranza, 289 F.3d 634, 644 (9th Cir.), cert. denied - U.S. -, 123 S.Ct. 572, 154 L.Ed.2d 458 (2002).