Alcalde-Aguilera

MEMORANDUM **

Luis Alcalde-Aguilera appeals his conviction and 37-month prison sentence imposed following his guilty plea to importation of cocaine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 , and we affirm.

Alcalde-Aguilera contends that the district court erred by denying his motion to *738 dismiss the indictment because 21 U.S.C. §§ 952 and 960 are unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Our holdings in United States v. Mendoza-Paz, 286 F.3d 1104, 1110 (9th Cir.) (§ 960), cert. denied, — U.S. -, 123 S.Ct. 573 , 154 L.Ed.2d 459 (2002) and United States v. Varela-Rivera, 279 F.3d 1174 , 1175 n. 1 (9th Cir.2002) (§ 952) foreclose this argument. See also United States v. Hernandez, 2003 WL 730663, at *8 (9th Cir.2003) (holding that Harris v. United States, 536 U.S. 545 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002) does not overrule Mendoza-Paz).

In the alternative, Alcalde-Aguilera contends that the government was required to allege in the indictment, present to the grand jury, and prove beyond a reasonable doubt that Alcalde-Aguilera knew the…