United States v. Zamorano-Flores

41 F. App'x 942

Opinion

MEMORANDUM ***

Defendant-Appellant Francisco Javier Zamorano-FIores (“Appellant”) appeals the district court’s sentence and entry of judgment. This Court has jurisdiction under 28 U.S.C. § 1291, and we affirm.

The statutes which Appellant challenge, 21 U.S.C. §§ 952 and 960, are facially constitutional. United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002); see also, United States v. Buckland, 289 F.3d 558, 563-68 (9th Cir.2002) (en banc), cert. den. — U.S. -, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002); United States v. Carranza, 289 F.3d 634, 643 (9th Cir.2002).

Appellant also makes an as-applied challenge to the sentence he received under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Appellant was never exposed to a sentence greater than 240 months imprisonment, the maximum to which he constitutionally may have been exposed under § 960(b)(1)- Because the district court in this case did not exceed the maximum sentence permitted for the specified amount of cocaine, Appx'exidi is not implicated.

Finally, Zamorano-Flores argues that the grand jury should have been instructed to find, and the government should have been required to prove, that he “knowingly” imported a particular quantity and type of controlled substance. This is not the law. See, e.g., United States v. Ramirez-Ramirez, 875 F.2d 772, 774 (9th Cir.1989)(“[A] defendant charged with importing and possessing a controlled substance need not know the exact nature of the substance with which he was dealing. Instead, a defendant can be convicted under § 841 and § 960 if he believes he has some controlled substance in his possession.” (internal quotation marks and citations omitted)); see also Carter v. United States, 530 U.S. 255, 269, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (“The presumption in favor of scienter requires a court to read into a statute only that mens X'ea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’ ” (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994))).

AFFIRMED.

Footnotes

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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 9 th Cir. R. 36-3.