Moran-Sandoval

MEMORANDUM **

Jesus Ricardo Moran-Sandoval (“Moran”) appeals his guilty-plea conviction and 57-month sentence for one count of 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.

Moran first contends that the district court erred by not dismissing the indictment because his constitutional right to the grand jury’s independent exercise of discretion was violated. He contends that it was erroneous not to instruct the grand jury that it could refuse to indict even if it found probable cause. This contention is foreclosed by our decision in United States v. Marcucci, 299 F.3d 1156 (9th Cir.) (per curiam), cert. denied, — U.S. —, 123 S.Ct. 1600 , 155 L.Ed.2d 334 (2003).

Next, Moran contends that 21 U.S.C. § 960 is unconstitutional following Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). In the alternative, he contends that even if § 960 is constitutional, the mens rea requirement applies to drug quantity and type. Both contentions are foreclosed by our decisions in United States v. Carranza, 289 F.3d 634 (9th Cir.), cert. denied, — U.S. —, 123 S.Ct.…