United States v. Sigmond

54 F. App'x 654

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 2003
• Docket: No. 01-50348; D.C. No. CR-01-00114-BTM
• Status: Published

Opinion

MEMORANDUM

**

Hugo Montoya Sigmond appeals his conviction and 13-month prison sentence imposed following his guilty plea to 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.

Sigmond 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.l (9th Cir.2002) (§ 952) foreclose this argument. See also United States v. Hernandez, 314 F.3d 430, —- (9th Cir.2002) (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, Sigmond contends that the government was required to allege in the indictment and prove beyond a reasonable doubt that Sigmond 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.