Pelayo-Jimenez

SUPPLEMENTAL MEMORANDUM **

By memorandum disposition dated December 18, 2001, we deferred resolution of Pelayo-Jimenez’s claim that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) pending en banc resolution of United States v. Buckland, No. 99-30285. This court issued a decision in Buckland on January 18, 2002, reported at 277 F.3d 1173 (9th Cir.), amended and superseded, 289 F.3d 558 (9th Cir.2002), and we now turn to Pelayo-Jimenez’s remaining arguments.

Pelayo-Jimenez first argues that 21 U.S.C. §§ 841 (b) and 960(b) are facially unconstitutional. The argument that 21 U.S.C. § 841 is facially unconstitutional was rejected in Buckland, 289 F.3d at 563-68. The argument that Apprendi rendered 21 U.S.C. § 960 facially unconstitutional was rejected in United States v. Mendoza-Paz, 286 F.3d 1104,1109-10 (9th Cir.2002).

Pelayo-Jimenez next argues that, because the jury was not instructed that Pelayo-Jimenez must have “knowingly” transported the quantity and type of drugs for which he was convicted, his sentence under 21 U.S.C. §§ 841 and 960 is unconstitutional under Apprendi . However, the sentence actually…