Hernandez-Gomez

MEMORANDUM

Jose Hernandez-Gomez appeals the 120-month sentence imposed following his guilty plea to two counts of conspiracy to possess with intent to distribute schedule II narcotics, in violation of 21 U.S.C. §§ 841 and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Hernandez-Gomez argues for the first time on appeal that his indictment fails to set forth the specific penalty provision of 21 U.S.C. § 841 (b) under which he was charged, and is therefore in contravention of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). This argument is without merit for two reasons.

First, the district court sentenced Hernandez-Gomez in accordance with the sufficiently pled indictment. United States v. Wuco, 535 F.2d 1200, 1202, n. 1 (9th Cir. 1976) (“It is the statement of facts in the pleading rather than the statutory citation, that is controlling, and if an indictment or information properly charges an offense under the laws of the United States it is sufficient .... ”). The indictment charged Hernandez-Gomez with, intra alia, conspiracy to distribute “a mixture and substance weighing at least 500…