Martinez-Pelaez

MEMORANDUM ***

Isidro Martinez-Pelaez appeals his jury trial conviction and his sentence for multiple counts of bringing in illegal aliens for financial gain ( 8 U.S.C. § 1324 (a)(2)(b)(ii)), transportation of illegal aliens ( 8 U.S.C. § 1324 (a)(l)(A)(ii)), and aiding and abetting ( 18 U.S.C. § 2 ) certain aliens to enter the United States ( 8 U.S.C. § 1327 ).

Martinez-Pelaez’s argument based on Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), is subject to plain error review as it was not raised in the district court. United States v. Olano, 507 U.S. 725, 731 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993). There is no plain error because Apprendi does not apply. Defendant was sentenced to a term of 85 months, well below the statutory maximum for the alien smuggling convictions. See United States v. Matus-Leva, 311 F.3d 1214, 1217 (9th Cir.) (noting that Apprendi is not implicated in a case that does not involve sentencing factors to be decided by a judge that increase the penalty beyond the statutory maximum), cert. denied, 537 U.S. 1022 , 123 S.Ct. 544 , 154 L.Ed.2d 431 (2002). Martinez-Pelaez, nonetheless, argues that the indictment violates the…