Mortensen

MEMORANDUM **

James Rankin Mortensen appeals his conviction and sentence imposed following his guilty plea to importation of marijuana in violation of 21 U.S.C. §§ 952 and 960.

Mortensen contends that 21 U.S.C. §§ 952 and 960 are unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2848 , 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, 322 F.3d 592 (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).

Mortensen further contends that the government was required to present to the grand jury and prove beyond a reasonable doubt that Mortensen knew the type and quantity of controlled substance he was alleged to have imported. We rejected this contention in United States v. Carranza, 289 F.3d 634, 644 (9th Cir.), cert. denied, - U.S. -, 123 S.Ct. 572 , 154 L.Ed.2d 458 (2002).

Finally, Mortensen argues that…