Navarro-Vargas

I. FACTS AND PROCEEDINGS BELOW

Because these cases present the same issues, we consoli- dated them for oral argument and disposition. In No. 02- 50663, Steve Navarro-Vargas (“Navarro-Vargas”) entered a conditional guilty plea to importing marijuana in violation of 21 U.S.C. §§ 952 and 960 and possessing a controlled sub- stance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). In No. 03-50009, Jose Antonio Leon-Jasso (“Leon-Jasso”) conditionally pled guilty to importing cocaine into the United States and possessing a controlled substance, also in violation of 21 U.S.C. §§ 952, 960 and 841. Each of the Appellants contends that his Fifth Amendment rights were violated because he was denied the unfettered judgment of the grand jurors. Navarro-Vargas and Leon-Jasso also argue that 21 U.S.C. § 960 and 841 are unconstitutional on their face because they require judges to determine sentencing factors.

In each case the district court instructed the grand jury using the model charge recommended by the Judicial Confer- ence of the United States.2 The grand jury charge included the following explanations and instructions (for convenience we have numbered the…