Lizarraga

MEMORANDUM **

Francisco Javier Lizarraga appeals the 46-month sentence imposed following his guilty plea conviction for importing methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 , and we affirm.

Lizarraga contends that the district court’s instructions to the grand jury violated his Fifth Amendment right to a grand jury’s independent exercise of discretion, because they failed to advise the jury that it could refuse to indict, even if it found probable cause. This argument is foreclosed by our decision in United States v. Marcucci 299 F.3d 1156, 1164 (9th Cir. 2002).

Lizarraga’s contention that sections 952 and 960 are facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), is foreclosed by our decisions in United States v. Varela-Rivera, 279 F.3d 1174 , 1175 n. 1 (9th Cir.2002) and United States v. Mendoza-Paz, 286 F.3d 1104, 1110 (9th Cir.2002).

Lizarraga’s contention that the district court should have dismissed the indictment because it failed to allege mens rea as to quantity and type of controlled substance is foreclosed by…