Padilla-Aragon

MEMORANDUM ***

Manuel Padilla-Aragon pleaded guilty to importing 37.8 kilograms of marijuana into the United States, in violation of 21 U.S.C. §§ 952 and 960. After the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), Padilla-Aragon moved to withdraw his guilty plea and to dismiss the indictment against him, contending that Appren-di renders § 960 unconstitutional. The district court denied both motions and sentenced Padilla-Aragon to twenty-seven months imprisonment and three years supervised release. We affirm.

I.

Padilla-Aragon argues that the district court erred in denying his motion to withdraw his guilty plea under Fed.R.Crim.P. 32(e), which provides: “If a motion to withdraw a plea of guilty or nolo contende-re is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” Id. Padilla-Aragon essentially contends that the district court should have granted his motion to withdraw his guilty plea since he entered his plea without knowledge of Apprendi. Apprendi holds that “[ojther than the fact of a prior conviction, any fact that increases the penalty…