Shelby

MEMORANDUM *

Shelby’s argument that 21 U.S.C. § 841 (b) is facially unconstitutional was recently rejected by this court. United States v. Buckland, 277 F.3d 1173 (9th Cir.2002)(en banc). Moreover, the application of this statute to him was not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Although the jury was not instructed to determine the quantity of drugs Shelby distributed, it was required to find that he had distributed a detectable amount of cocaine base, which carries a penalty of zero to twenty years. 21 U.S.C. §§ 802 (6), 812(c) and 841(b). Because Shelby was sentenced to less than twenty years, the failure to submit the quantity to the jury did not affect his sentence or his “substantial rights.” United States v. Olano, 507 U.S. 725, 732 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993).

This court has previously held that the government need only prove that the defendant knows he is dealing in some form of controlled substance, and not mens rea with respect to the specific type and quantity of drug. United States v. Jewell, 532 F.2d 697, 698 (9th Cir.1976) (government not required to prove defendant’s knowledge of…