Villela-Rodriguez

MEMORANDUM **

Eduardo Villela-Rodriguez appeals the 57-month sentence imposed following his guilty-plea conviction for importation of cocaine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 18 U.S.C. § 3742 , and we dismiss.

Villela-Rodriguez pleaded guilty pursuant to a plea agreement containing a waiver of the right to appeal unless the court imposed a sentence based on a total offense level greater than 30. Because the court sentenced Villela-Rodriguez to 57-months imprisonment based on a total offense level less than 30, the waiver of the right to appeal is enforceable unless otherwise unconstitutional. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996) (recognizing exception to waiver of right to appeal where sentence imposed is in excess of statutory maximum penalty).

Villela-Rodriguez now contends that the statutory scheme under which he was convicted, 21 U.S.C. §§ 952 and 960, is facially unconstitutional after Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and that the district court erred by finding, without proof beyond a reasonable doubt, that Villela-Rodriguez knew that the vehicle he was…