Godoy-Aguirre

MEMORANDUM **

Baltazar Godoy-Aguirre appeals his conviction and sentence for reentering the United States after deportation in violation of 8 U.S.C. § 1326 (a). We affirm.

Godoy-Aguirre argues that count one of the indictment, which was for attempted reentry, failed to allege the existence of specific intent. He first challenged the indictment on this basis several months after his trial had concluded. We review an untimely challenge to the indictment under the plain error standard. United States v. Leos-Maldonado, 302 F.3d 1061 (9th Cir.2002). Godoy-Aguirre does not argue that he was prejudiced by the indictment’s omission or that the error affected his substantial rights, nor does the record so reflect. In fact, GodoyAguirre’s counsel argued to the jury that his client did not have the intent necessary to commit attempted reentry. No relief is warranted.

Godoy-Aguirre also contends that his 70-month sentence was erroneous because the basis for increasing it beyond the two-year statutory maximum contained in 8 U.S.C. § 1326 (a) was the trial judge’s determination that Godoy-Aguirre had previously committed aggravated felonies.

Godoy-Aguirre urges the panel to read Apprendi v.…