Ramos-Cota

*374 MEMORANDUM **

Eduardo Ramos-Cota appeals his conviction and sentence under 21 U.S.C. §§ 952 and 960 for importation of marijuana. Ramos-Cota first argues the district court erred in denying his request to withdraw his guilty plea because it was entered without knowledge of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Ramos-Cota then contends the district court committed error by refusing to dismiss the indictment for failure to allege type and quantity of controlled substance as an element of the charge. We affirm the district court on both counts.

Ramos-Cota’s first argument fails because Apprendi is not implicated where the defendant is sentenced below the prescribed statutory maximum. See id. at 490 . See also United States v. Carranza, 289 F.3d 634, 643 (9th Cir.2002). Under 21 U.S.C. § 960 (b)(4), Ramos-Cota was subject to a statutory maximum of five years imprisonment. He received a twenty-four month sentence. Accordingly, Apprendi does not provide a fair and just reason to withdraw the plea as required by Fed.R.Crim.P. 32(e).

Ramos-Cota also argues that the district court should have dismissed the indictment because the government…