Martinez-Martinez

MEMORANDUM *

Gerardo Martinez-Martinez (“Martinez”) appeals his sentence and conviction, pursuant to a guilty plea, for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. Martinez makes a facial constitutional challenge to 21 U.S.C. §§ 952 and 960. Martinez also argues that the district court erred in calculating his criminal history category because the government did not present sufficient evidence that his prior juvenile dispositions were countable prior sentences under the Sentencing Guidelines. We affirm the conviction, but remand for resentencing.

I. Facial Constitutional Challenge to 21 U.S.C. §§ 952 and 960

Martinez challenges his conviction by arguing that 21 U.S.C. §§ 952 and 960 are facially unconstitutional under Apprendi v. v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), because they require the determination of drug quantity, and therefore the establishment of the applicable maximum sentence, to be made by the judge rather than a jury. That challenge is foreclosed by our recent decision in United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.2002). In Mendozar-Paz, we held that 21 U.S.C. § 960 (incorporating § 952) does not…