United States v. Aguilar-Cardenas

50 F. App'x 845

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 12, 2002
• Docket: No. 02-50028; D.C. No. CR-01-02440-IEG
• Status: Published

Opinion

MEMORANDUM

**

Betzy Aguilar-Cardenas appeals her conviction after pleading guilty to the charge of importation of marijuana in violation of 21 U.S.C. §§ 952, 960. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Aguilar-Cardenas first argues that 21 U.S.C. § 952 and § 960 are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have recently rejected this argument. See United States v. Mendoza-Paz, 286 F.3d 1104, 1110 (9th Cir.2002) (finding § 960 constitutional against a challenge based on Apprendi)-, United States v. Varela-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir.2002) (finding § 952 constitutional despite the rule in Apprendi).

Aguilar-Cardenas next contends that the indictment is insufficient because it did not allege mens rea as to drug type and quantity. This contention is also foreclosed. United States v. Camnza, 289 F.3d 634, 644 (9th Cir.2002) (Mens rea as to drug type and quantity need not be alleged in the indictment nor found by a jury).

Lastly, Aguilar-Cardenas contends that, in connection with her Rule 11 plea colloquy, the government should have informed her that it would have to prove drug type and quantity under Apprendi. The court did inform her that the government must prove that the amount of marijuana was 73.74 pounds and that it was a Schedule I controlled substance. The government also informed Aguilar-Cardenas that it must prove (1) she brought marijuana into the United States and (2) she knew it was a controlled substance — all that is necessary to be found guilty. See United States v. Buckland, 289 F.3d 558, 570 (9th Cir.2002) (en banc) (Drug quantity determination giving rise to a sentence below the statutory maximum need not be determined by jury.). As she was given notice of all elements of the crime with which she was charged, there was no Apprendi due process violation. Therefore, judgment of the district court is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.