
    UNITED STATES of America, Plaintiff-Appellee, v. Francisco SANCHEZ, Defendant-Appellant.
    No. 01-50171.
    D.C. No. CR-00-03109-JNK.
    United States Court of Appeals, Ninth Circuit.
    Submitted March 6, 2002.
    
    Decided April 16, 2002.
    Before PREGERSON, FISHER, and TALLMAN, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Defendant-Appellant Francisco Sanchez, Jr. (“Sanchez”) appeals his conviction and ten-month sentence for knowing or intentional possession of, with intent to distribute, a controlled substance under 21 U.S.C. § 841(a)(1), and for knowing or intentional importation of a controlled substance under 21 U.S.C. §§ 952(a) and 960(a)(1). Because the facts are known to the parties, we do not repeat them here except as necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

Sanchez first argues that the District Court erred when it denied his motion to suppress evidence of nineteen kilograms of marijuana seized at the border as the fruit of an illegal arrest without probable cause. Under United States v. Doe, 219 F.3d 1009, 1014 (9th Cir.2000), however, a suspect is not in “custody” merely because he is, like Sanchez, detained and patted down at the border while his car is being searched. Therefore, Sanchez’s detention at the border did not constitute an arrest and no probable cause was needed for that detention.

Sanchez next argues that §§ 841 and 960 are facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have recently rejected this argument in our decisions in United States v. Buckland, m F.3d 1173 (9th Cir.2002) (en banc), and United States v. Mendoza-Paz, — F.3d -, No. 00-50029, 2002 WL 531153 (9th Cir. Apr. 10, 2002).

Sanchez further argues that under Apprendi, the government had to prove drug type and drug quantity to the jury beyond a reasonable doubt. Sanchez pled guilty to violations of both § 960 and § 841(a)(1). The lowest statutory maximum that he possibly could have faced pursuant to § 960 was 5 years in prison. See 21 U.S.C. § 960(b)(4). Because the District Court never exposed him to any sentence greater than 5 years, Sanchez’s sentence does not implicate Apprendi For the same reason, the government also did not have to prove knowledge of drug type and drug quantity to the jury beyond a reasonable doubt under these circumstances. Even if this were required, Sanchez’s sentence was 10 months — well below 5 years — and thus any Apprendi error would be harmless.

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
     