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11 Guideline Sentencing Update 1 (2000-2002)

handle is hein.congcourts/gsenupa0011 and id is 1 raw text is: Guideline Sentencing Update
a publication of the Federal Judicial Center * available via Internet at http://www.fc.gov * vol. 11, no. 1 Sept. 28, 2000

Offense Conduct
Drug Quantity
More circuits examine effect of Apprendi decision on
sentencing. The Fifth Circuit remanded some of the sen-
tences in a drug conspiracy case in light of Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000). The court noted that it
has continually endorsed handling drug quantity as a
sentencing enhancement entrusted to the judge's deter-
mination rather than an element of the offense wh ich
must be determined by the jury. However, the court did
not reconcile its precedent with Apprendi's holding that
the jury must find drug amounts that increase a sentence
above the maximum otherwise authorized by the jury
verdict, because the government 'conced[es] that the
Apprendi decision applies to 21 U.S.C. § 841.'
The district court had followed the usual procedure of
determining drug amounts based on a preponderance of
the evidence; neither the indictment nor the jury verdict
specified amounts for any defendant. Most defendants
were sentenced below the statutory maximum for their
basic offense of conviction, given their criminal history.
However, one defendant's two life sentences, based on
the court's quantity findings, were remanded because
they exceeded the thirty-year maximum for his basic
offenses of conviction. The appellate court also re-
manded several supervised release terms that exceeded
the maximum terms allowed for the base offenses.
The court rejected one defendant's claim that
Apprendi should be read broadly to preclude giving him
a higher sentence within [the statutory] range based on
the application of a Sentencing Guidelines enhance-
ment. Although Apprendi did not resolve that issue,
[gliven that the more limited reading of Apprendi is a
more plausible reading of the case, and given the pro-
found effect a broader rule would have on existing Su-
preme Court and Fifth Circuit precedent, we believe the
limited reading of Apprendi is the more desirable one.
U.S. v. Meshack, No. 99-50669 (5th Cir. Aug. 28, 2000)
(Garza, .). See also U.S. v. Smith, 223 E3d 554,- (7th Cir.
2000) (for defendants who were convicted of operating
continuing criminal enterprise under 21 U.S.C. § 848(a),
which carries sentence of thirty years to life, Apprendidid
not require submitting facts to jury that, under § 848(b),
would require mandatory life sentence).
The Ninth Circuit did specifically rule on Apprendi's
effect on its prior precedent. Finding that Apprendi re-
quires that a fact that increases the prescribed statutory
maximum penalty to which a criminal defendant is ex-

posed.., be submitted to a jury and proven beyond a
reasonable doubt, the court held that the amount of
drugs forwhich a defendant is sentenced under 21 U.S.C.
§ 841(b) (1) is such a fact, and that our existing precedent
to the contrary is overruled to the extent that it is incon-
sistent with Apprendi.
Defendant was convicted of conspiracy to possess
with intent to distribute marijuana. The jury verdict did
not specify any quantity of marijuana, so the only sen-
tence under § 841 justifiable under the facts as found by
the jury would be a sentence... of not more than five
years applicable to possession of less than 50 marijuana
plants. See 21 U.S.C. § 841(b) (1) (D). The trial court's find-
ing that Nordby possessed 1000 or more plants under
§841 (b)(1)(A)(vii) increased Nordby's sentence to 'not [ ]
less than 10 years or more than life' and a possible fine.
Thus, the judge's finding, made under a preponderance
standard, increased the statutory maximum penalty for
Nordby's crime from five years to life.
We conclude that the district court erred by sentenc-
ing Nordby under 21 U.S.C. §§ 841 and 846 for manufac-
turing, possessing with intent to distribute, and conspir-
ing to possess with intent to distribute 1000 or more
marijuana plants without submitting the question of
marijuana quantity to the jury and without a finding that
the marijuana quantity had been proved beyond a rea-
sonable doubt. We further conclude that the constitu-
tional rule in Apprendi undermines our existing prece-
dent holding that a defendant's sentence under § 841 can
be based on a judge's finding at sentencing of drug quan-
tity under a preponderance-of-the-evidence standard.
The court held that, even under plain error review, defen-
dant was entitled to resentencing subject to the maxi-
mum sentence supported by the facts found by the jury
beyond a reasonable doubt, consistently with Apprendi
and this opinion.
U.S. v. Nordby, No. 99-10191 (9th Cir. Sept. 11, 2000)
(Canby, J.). Cf In rejoshua, No. 00- 14328 (11 th Cir.Aug. 30,
2000) (per curiam) (denying application to file second or
successive § 2255 motion based on Apprendi because
the Supreme Court has not declared Apprendi to be
retroactive to cases on collateral review).
The Sixth Circuit applied Apprendi in a case where
defendant pled guilty to distribution of heroin pursuant
to a plea agreement. The agreement stated that defen-
dant understood her maximum term of imprisonment
was twenty years for distribution, but that if the district
court found that death resulted from the distribution,
21 U.S.C. § 841(b) (1) (A)-(C), she would be sentenced to

Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions
on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy
statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be consid-
ered a recommendation or official policy of the Center; any views expressed are those of the author.

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