Bayona

MEMORANDUM **

Federal prisoner Jose Luis Bayona appeals the conviction and twenty-four-month sentence imposed following his guilty pleas to importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960, and possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). Bayona attacks these statutes as facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). We review challenges to the constitutionality of statutes de novo. 1 See United States v. Harris, 185 F.3d 999, 1003 (9th Cir.1999), cert. denied, 528 U.S. 1055 , 120 S.Ct. 600 , 145 L.Ed.2d 498 (1999). Apprendi requires that “[ojther 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.” 530 U.S. at 490 , 120 S.Ct. 2348 .

As this Court recently held, section 841 is not facially unconstitutional under Apprendi because it does not require the trial court to determine the quantity or type of drugs. United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc). Following Buckland , we must also reject…