Gutierrez-Aleman
United States v. Gutierrez-Aleman
Opinion
Lead Opinion
MEMORANDUM **
Sandra Gutierrez-Aleman appeals her conviction and sentence under 21 U.S.C. §§ 952 and 960 for importation of marijuana. Gutierrez-Aleman first argues the district court erred in denying her request to withdraw her 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). Gutierrez-Aleman also 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.
Gutierrez-Aleman’s first argument fails because Apprendi is not implicated where the defendant is sentenced below the prescribed statutory maximum. See id. at 490 , 120 S.Ct. 2348 . See also United States v. Carranza, 289 F.3d 634, 643 (9th Cir.2002). Under 21 U.S.C. § 960 (b)(3), Gutierrez-Aleman was subject to a statutory maximum of twenty years imprisonment. She 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).