Opinion
Case No. 99 CR 497
March 26, 2002
MEMORANDUM AND ORDER
Defendant contends that 21 U.S.C. § 960 is unconstitutional because Congress intended the amounts of drugs to be a sentencing, rather than an elements, factor, and that cannot constitutionally stand in light ofApprendi v. New Jersey, 530 U.S. 466 (2000). But defendant has pled guilty and has thereby waived any attacks on the statute. Even if he had not waived any attack, his contention would fail. Although his position had support from a majority of a panel in United States v. Buckland, 259 F.3d 1157 (9th Cir. 2001) (dealing with a parallel statute, 21 U.S.C. § 841) the Ninth Circuit en banc reached a contrary conclusion in United States v. Buckland, 277 F.3d 1173 (9th Cir. 2002). More to the point, the Seventh Circuit rejected defendant's argument inUnited States v. Brough, 243 F.3d 1078 (7th Cir. 2001), and this court is bound by that decision.