Bermudez-Barba
United States v. Bermudez-Barba
Opinion
Lead Opinion
MEMORANDUM **
Defendant-Appellant Armando Bermudez-Barba (“Bermudez-Barba”) appeals Ms conviction and sentence for importation of a controlled substance in violation of 21 U.S.C. §§ 952 , 960 and possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841 (a)(1).
The constitutional principles set forth in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) are not offended by 21 U.S.C. § 960 because that section does not prohibit the jury from determimng drug type and quantity. See United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002). Neither does Apprendi require that the indictment allege or the government prove that the defendant knew the type and amount of the controlled substance he imported or possessed. See United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002).
The district court did not err when instructing the jury. Smee knowledge of drug type and quantity are not elements of the charged offense, the district court properly instructed the jury that Bermudez-Barba need only know that the substance was some kind of prohibited drug. See Carranza, 289 F.3d at 644 .