United States v. Diaz

37 F. App'x 880

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2002
• Docket: No. 00-50709; D.C. No. CR-00-01856-IEG
• Status: Published

Opinion

MEMORANDUM

**

Susan Diaz appeals following her conviction by conditional guilty plea to one count of importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Diaz contends that her indictment must be dismissed, because sections 952 and 960 are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and United States v. Nordby, 225 F.3d 1053, 1058-59 (9th Cir.2000). This contention is foreclosed by our decisions in United States v. Buckland, 289 F.3d 558, 568 (9th Cir.2002) (en banc) (overruling Nordby’s conclusion that Congress committed drug quantity to the sentencing judge to decide by a preponderance of the evidence), cert. denied, 2002 WL 764233 (U.S. May 28, 2002) (No. 01-9813); United States v. Varela-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir.2002) (rejecting constitutional challenge to section 952 in light of Buckland); and United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002) (concluding that Apprendi does not render section 960 facially unconstitutional).

Diaz contends, in the alternative, that section 960 requires the government to plead and prove mens rea as to drug type and quantity. We recently rejected this argument in United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (holding that, even after Apprendi, the government need only show that the defendant knew she imported some controlled substance).¹

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.

1 . Diaz’s motion for further briefing on the panel decision in United States v. Buckland, 259 F.3d 1157 (9th Cir.2001), is denied as moot.