United States v. Chichil

193 F. App'x 704

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 28, 2006
• Docket: Nos. 05-50113, 05-50127
• Status: Published

Opinion

MEMORANDUM

**

Lorenzo Gomez Chichil appeals from the 180-month sentence imposed upon remand from this court. He was convicted by a jury of distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1); conspiracy, in violation of 21 U.S.C. § 846; and illegally carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

Chichil contends on appeal, as he did at the de novo resentencing, that the mandatory minimum sentence of 120 months under 21 U.S.C. § 841(b)(1)(A) was unconstitutional because the sentence imposed was based on judge-found facts regarding the quantity of drugs involved. We agree. The district court’s use of a statutory sentencing range that exposed Chichil to a higher maximum than that permitted by the jury’s finding violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Velasco-Heredia, 319 F.3d 1080, 1085 (9th Cir.2003).

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.