United States v. Ramos-Cota

50 F. App'x 373

Opinion

MEMORANDUM

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Eduardo Ramos-Cota appeals his conviction and sentence under 21 U.S.C. §§ 952 and 960 for importation of marijuana. Ramos-Cota first argues the district court erred in denying his request to withdraw his guilty plea because it was entered without knowledge of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Ramos-Cota then contends the district court committed error by refusing to dismiss the indictment for failure to allege type and quantity of controlled substance as an element of the charge. We affirm the district court on both counts.

Ramos-Cota’s first argument fails because Apprendi is not implicated where the defendant is sentenced below the prescribed statutory maximum. See id. at 490. See also United States v. Carranza, 289 F.3d 634, 643 (9th Cir.2002). Under 21 U.S.C. § 960(b)(4), Ramos-Cota was subject to a statutory maximum of five years imprisonment. He received a twenty-four month sentence. Accordingly, Apprendi does not provide a fair and just reason to withdraw the plea as required by Fed.R.Crim.P. 32(e).

Ramos-Cota also argues that the district court should have dismissed the indictment because the government failed to allege quantity and type of controlled substance. First, the government explicitly alleged quantity and type of drug in the indictment. Further, the drug sentencing statutes at issue in this ease have been held to be facially constitutional. See United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002) (rejecting constitutional challenge to § 960). United States v. Valera-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir.2002) (rejecting constitutional challenge to § 952). Finally, to the extent Ramos-Cota argues the district court erred by failing to require proof of mens rea as to type and quantity of controlled substance, this argument is foreclosed by our decision in United States v. Carranza, 289 F.3d 634, 643-44 (9th Cir. 2002) (holding that government need not prove drug type or knowledge of drug quantity). The district court is therefore affirmed.

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.