United States v. Fernandez

MEMORANDUM ** Rafael Aguilar Fernandez appeals his conviction by guilty plea and the sentence imposed for importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960. Fernandez’s contention that 21 U.S.C. § 960 is facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and that Harris v. U.S., 536 U.S. 545 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002), overrules United States v. Buckland, 289 F.3d 558, 562 (9th Cir.) (en banc), cert. denied, 535 U.S. 1105 , 122 S.Ct. 2314 , 152 L.Ed.2d 1067 (2002) and United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 573 , 154 L.Ed2d 459 (2002), is foreclosed by United States v. Hernandez, 322 F.3d 592 (9th Cir.2003). Fernandez’s contention that a mens rea requirement applies to the elements of drug type and quantity is foreclosed by United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) and Hernandez, 322 F.3d at 602 . 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.