Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was sentenced in the United States District Court for the Southern District of California, Judith N. Keep, J., and he appealed. The Court of Appeals held that defendant waived his right to appeal his sentence.
Dismissed.
Page 524.
Appeal from the United States District Court for the Southern District of California Judith N. Keep, District Judge, Presiding.
Before D.W. NELSON, FERNANDEZ, and RYMER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Enrique Castellanos-Loza appeals his sentence on the ground that the district court erred in finding that sentencing entrapment was inapplicable, and should not have denied a downward departure. However, Castellanos-Loza waived his right to appeal the sentence if the district court did not sentence beyond the guideline range recommended by the government. As the court sentenced within that range, the appeal as to these issues is dismissed.
Castellanos-Loza also argues that the district court misapplied the guidelines in light of a scienter requirement that he contends should have been imposed in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We do not dismiss this Apprendi claim because it implicates the legality of his sentence. See United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996). Accordingly, we vacate submission of Castellanos-Loza's Apprendi claim in a separate order filed concurrently.
DISMISSED.