Quintana-Quintana

*105 MEMORANDUM **

Defendant-appellant Oscar Quintana-Quintana (“Quintana”) was convicted after a jury trial of being a deported alien found in the United States, in violation of 8 U.S.C. § 1326 , and sentenced principally to a term of 70 months incarceration. Quintana appeals his conviction and sentence on five grounds.

Quintana’s first claim, that the indictment is defective because it does not allege that Quintana had knowledge of all elements of the offense, was not raised before the district court. Accordingly, our review is only for plain error. See United States v. Velasco-Medina, 305 F.3d 839, 846 (9th Cir.2002). This Court has held that in a prosecution under 8 U.S.C. § 1326 ,

Pena-Cabanillas v. United States, 394 F.2d 785, 789 (9th Cir.1968) (internal citations omitted). Contrary to Quintana’s assertions, Penar-Cabanillas is controlling, and has not been abrogated by the Supreme Court’s holding in Staples v. United States, 511 U.S. 600 , 114 S.Ct. 1793 , 128 L.Ed.2d 608 (1994). Accordingly, Quintana’s first claim is without merit.

Quintana’s second claim, that the indictment is defective under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435…