United States v. Verduzco-Higuera

36 F. App'x 621

Opinion

MEMORANDUM

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David Verduzco-Higuera appeals his conviction and 27-month prison sentence imposed following his guilty plea to importation of cocaine and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841, 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Verduzco-Higuera contends that 21 U.S.C. §§ 841, 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. Buckland, 289 F.3d 558, 564 (9th Cir.2002), cert. denied, — U.S.—, 122 S.Ct. 2314, — L.Ed.2d — (2002) (§ 841); United States v. Mendoza-Paz, 286 F.3d 1104, 1110 (9th Cir.2002) (§ 960), and United States v. Varela-Rivera, 279 F.3d 1174, 1175 n. 1 (9th Cir.2002) (§ 952) foreclose this argument.

In the alternative, Verduzco-Higuera contends that the government was required to allege in the indictment that Verduzco-Higuera knew the type and quantity of controlled substance he was alleged to have imported. Verduzco-Higu-era raised this argument for the first time in his reply brief. Accordingly, we will not review the claim. See United States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991). Moreover, even if the issue were properly before us, we would still affirm the district court. See United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (holding that Apprendi does not require the government to prove that defendant knew type and amount of controlled substance).

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 9th Cir. R. 36-3.