United States v. Espinoza

54 F. App'x 483

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2003
• Docket: No. 01-50268; D.C. No. CR-00-02087-JSR
• Status: Published

Opinion

MEMORANDUM

**

Salvador J. Espinoza appeals his guilty-plea conviction and 37-month sentence for 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 18 U.S.C. § 3742, and we affirm.

Espinoza first contends that 21 U.S.C. § 960 is 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 (9th Cir.2000), overruled in part by United States v. Buckland, 289 F.3d 558, 568 (9th Cir.) (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, -U.S.-, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002). This contention is foreclosed by our decision in United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.), cert. denied, — U.S.-, 123 S.Ct. 573,154 L.Ed.2d 459 (2002).¹

Espinoza’s second contention is that even if § 960 is constitutional, the mens rea requirement applies to drug quantity and type. This contention is foreclosed by our decision 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).

Espinoza’s final contention is that Buck-land and Mendoza-Paz have been overruled by Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). This contention is foreclosed by our recent decision in United States v. Hernandez, 314 F.3d 430, 437-38 (9th Cir. 2002).

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.

1 . To the extent that Espinoza also contends that § 952 is unconstitutional under Apprendi, that contention is foreclosed by our decision in United States v. Varela-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir.2002).