Cortez-Rivera

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-50207 Plaintiff-Appellee, v.  D.C. No.

CR-04-02171-WQH

ENRIQUE CORTEZ-RIVERA,

OPINION

Defendant-Appellant.  Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted June 9, 2006—Pasadena, California

Filed July 24, 2006

Before: Stephen Reinhardt, Stephen S. Trott, and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Trott

8127 8130 UNITED STATES v. CORTEZ-RIVERA

COUNSEL

Ellis M. Johnston III and Steven F. Hubachek, Assistant Fed- eral Public Defenders, San Diego, California, for the defendant-appellant.

Michael J. Crowley, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

OPINION

TROTT, Circuit Judge:

Enrique Cortez-Rivera appeals from his conviction follow- ing a conditional guilty plea for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. He asserts that the dis- trict court should have dismissed his indictment because the model instructions given to the grand…