United States v. Barragan

58 F. App'x 340

Opinion

MEMORANDUM

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Maria Esperanza Barragan appeals her conviction, pursuant to a conditional guilty plea, and sentence for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960.

Barragan’s contention that the indictment was defective because the grand jury was not given a nullification instruction that it did not have to indict even if it found probable cause, is foreclosed by United States v. Marcucci, 299 F.3d 1156 (9th Cir.2002). Her contention that the federal drug statutes are unconstitutional following Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is precluded by United States v. Buckland, 289 F.3d 558, 562 (9th Cir.) (en banc), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002), and United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.), cert. denied, — U.S.-, 123 S.Ct. 573, 154 L.Ed.2d 459 (2002). See United States v. Hernandez, 322 F.3d 592 (9th Cir.2003) (holding that United States v. Harris, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), does not overrule Buckland or Mendoza-Paz). Finally, her contention that the indictment was defective because it did not allege that Barragan had the mens rea as to the drug type and quantity is foreclosed by United States v. Carranza, 289 F.3d 634 (9th Cir.), cert. denied, — U.S.-, 123 S.Ct. 572, 154 L.Ed.2d 458 (2002). Accordingly, Barragan’s conviction 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.