Hernandez-Loya

MEMORANDUM **

Hernandez-Loya appeals the district court’s denial of his motion to dismiss an indictment that charged him with, inter alia, importation of marijuana in violation of 21 U.S.C. §§ 952 , 960. Hernandez^ Loya pleaded guilty to violating 21 U.S.C. § 960 , but preserved his right to appeal the constitutionality of that statute. Because the parties are familiar with the facts, we will not recite them in detail except as necessary. We have jurisdiction *100 pursuant to 28 U.S.C. § 1291 , and we affirm.

Hernandez-Loya first argues that 21 U.S.C. § 960 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). This court has rejected that argument. See United States v. Mendoza-Paz, 286 F.3d 1104, 1109 (9th Cir.2002).

We also note that Hernandez-Loya cannot assert an as-applied challenge to the constitutionality of 21 U.S.C. § 960 because as in Mendoza-Paz, 286 F.3d at 1109-1110 , and United States v. Carranza, 289 F.3d 634, 643 (9th Cir.2002), Hernandez-Loya was never exposed to a sentence beyond the prescribed statutory maximum. The Supreme Court held in Apprendi that “[ojther than the fact of a prior conviction, any fact…