Perez

MEMORANDUM *

Defendant-Appellant Alberto Banuelos Perez appeals his sentence of 57 months in prison for his conviction on one count of possession of heroin with intent to distribute under 21 U.S.C. § 841 (a)(1). The judge found that he possessed over one kilogram of heroin. Perez claims that because the jury did not find that he possessed a specific amount of heroin, Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), required that he be sentenced under § 841(b)(1)(C), for unspecified amounts of heroin, rather than under § 841(b)(1)(A), for amounts of heroin in excess of one kilogram. As Perez did not present this claim to the district court, we review for plain error. United States v. Romero, 282 F.3d 683, 689 (9th Cir.2002). We are foreclosed by precedent from accepting Perez’s argument because his sentence is under the maximum for the crime for which he was convicted. See United States v. Ochoa, 311 F.3d 1133 , 2002 WL 31608255, at *2 (9th Cir. Nov.21, 2002) (“It is unnecessary to submit the amount of drugs to the jury because the sentence did not exceed the statutory maximum.”).

Defendant-Appellant Jose de Jesus Rodriguez-Castillo appeals his…