United States v. Alcalde-Aguilera

58 F. App'x 737

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2003
• Docket: No. 01-50701; D.C. No. CR-01-02367-LDG
• Status: Published

Opinion

MEMORANDUM

**

Luis Alcalde-Aguilera appeals his conviction and 37-month prison sentence imposed following his guilty plea to importation of cocaine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

Alcalde-Aguilera contends that the district court erred by denying his motion to dismiss the indictment because 21 U.S.C. §§ 952 and 960 are unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our holdings in United States v. Mendoza-Paz, 286 F.3d 1104, 1110 (9th Cir.) (§ 960), cert. denied, — U.S. -, 123 S.Ct. 573, 154 L.Ed.2d 459 (2002) and United States v. Varela-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir.2002) (§ 952) foreclose this argument. See also United States v. Hernandez, 2003 WL 730663, at *8 (9th Cir.2003) (holding that Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) does not overrule Mendoza-Paz).

In the alternative, Alcalde-Aguilera contends that the government was required to allege in the indictment, present to the grand jury, and prove beyond a reasonable doubt that Alcalde-Aguilera knew the type and quantity of controlled substance he was alleged to have imported. We rejected this contention in United States v. Carranza, 289 F.3d 634, 644 (9th Cir.), cert. denied, — U.S.-, 123 S.Ct. 572, 154 L.Ed.2d 458 (2002), and do so here.

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 Ninth Circuit Rule 36-3.