United States v. Mendoza-Gutierrez

81 F. App'x 210

Opinion

MEMORANDUM

Footnotes

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German Mendoza-Gutierrez appeals the sentence imposed following his guilty plea to distribution of 50 or more grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(viii).

Mendoza-Gutierrez contends that under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred in sentencing him to a sentence above the sentencing range of 57 — 71 months, which is the range for the offense level based on the quantity of drugs that was admitted by Mendoza-Gutierrez in the plea agreement. Mendoza-Gutierrez concedes, however, that the statutory maximum sentence under 21 U.S.C. § 841(b)(l)(B)(viii) is forty years, and that he was sentenced to less than that maximum. Because this “court has repeatedly held that Apprendi does not apply to guidelines enhancements where the sentence imposed is within the statutory maximum,” United States v. Alli, 344 F.3d 1002, 1009 (9th Cir.2003), Mendoza-Gutierrez’s sentence is.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.