United States v. Nunez-Martinez

MEMORANDUM** Ismael Nunez-Martinez appeals from his conditional guilty plea conviction and [457] sentence for importation of cocaine, in violation of 21 U.S.C. §§ 952, 960. Nunez-Martinez’s contention that 21 U.S.C. § 960 is facially unconstitutional following Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that United States v. Harris, 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.Ed.2d 459 (2002), is foreclosed by United States v. Hernandez, 314 F.3d 430, 438 (9th Cir.2002). Nunez-Martinez’s contention that the indictment was defective because it did not allege that Nunez-Martinez had the mens rea as to the drug type and quantity is foreclosed by United States v. Carranza, 289 F.3d 634 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 572, 154 L.Ed.2d 458 (2002). Nunez-Martinez’s conviction is AFFIRMED. Footnotes [**] 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.