Sanchez

MEMORANDUM **

Defendant-Appellant Francisco Sanchez, Jr. (“Sanchez”) appeals his conviction and ten-month sentence for knowing or intentional possession of, with intent to distribute, a controlled substance under 21 U.S.C. § 841 (a)(1), and for knowing or intentional importation of a controlled substance under 21 U.S.C. §§ 952 (a) and 960(a)(1). Because the facts are known to the parties, we do not repeat them here except as necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

Sanchez first argues that the District Court erred when it denied his motion to suppress evidence of nineteen kilograms of marijuana seized at the border as the fruit of an illegal arrest without probable cause. Under United States v. Doe, 219 F.3d 1009, 1014 (9th Cir.2000), however, a suspect is not in “custody” merely because he is, like Sanchez, detained and patted down at the border while his car is being searched. Therefore, Sanchez’s detention at the border did not constitute an arrest and no probable cause was needed for that detention.

Sanchez next argues that §§ 841 and 960 are facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct.…