Romero-Montiel

MEMORANDUM ***

Appellant Jesus Romero-Montiel appeals his conviction for possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841 . Appellant contends that the district court erred in denying his motion to suppress evidence. Appellant also contends that the district court erred in not dismissing the indictment under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000).

This court reviews the district court’s denial of a motion to suppress evidence de novo. United States v. Kemmish, 120 F.3d 937, 939 (9th Cir.1997). Because the government concedes, and this court assumes without deciding, that this was a non-routine border search, the government must have had reasonable suspicion to conduct this search. United States v. Montoya de Hernandez, 473 U.S. 531, 541 , 105 S.Ct. 3304 , 87 L.Ed.2d 381 (1985). Reasonable suspicion, which is a mixed question of law and fact, is also reviewed de novo, United States v. Nates, 831 F.2d 860, 862 (9th Cir.1987), but underlying factual determinations are reviewed for clear error. United States v. Ogbuehi, 18 F.3d 807, 812 (9th Cir.1994).

The district court did not err in concluding that the customs…