United States v. Magana

105 F. App'x 918

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 29, 2004
• Docket: No. 98-10487; D.C. No. CR-97-05167-MDC
• Status: Published

Opinion

ORDER AND MEMORANDUM

*

Having heard oral argument on the petition for rehearing in this case, we grant the petition and remand for re-sentencing in accord with United States v. Ameline, 376 F.3d 967 (9th Cir.2004). Because the parties are familiar with the facts and history of this ease we will not recount it here.

In the initial appeal before this panel, Magana’s attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw as counsel of record. Magana filed a pro se supplemental brief. We issued a memorandum disposition affirming the district court. However, the Supreme Court vacated our decision and remanded for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Gonzales Magana v. United States, 531 U.S. 1063, 121 S.Ct. 751, 148 L.Ed.2d 655 (2001).

On remand, we issued a memorandum disposition again affirming the district court. We concluded that, although an Apprendi error had occurred because the jury had not determined the quantity of drugs at issue, the error was harmless. However, our court’s recent decision in Ameline casts doubt on that conclusion, as Magana argued in post-argument submissions. Ameline analyzed the Supreme Court’s recent opinion in Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and its impact on the United States Sentencing Guidelines. Blakely held that the ‘“statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 2537 (emphasis in original). In Ameline, our court noted that the defendant in that case was effectively “subject to dueling statutory máximums” in that “[u]nder 21 U.S.C. § 841(b)(1)(C), he faced a potential sentence of 0 to 20 years” but that “Congress [had] also provided, through its implicit adoption of U.S.S.G. § 2Dl.l(c), a differing range of presumptive sentences based on the quantity of drugs, including methamphetamine, as determined by the district judge or admitted by the defendant.” ■ Ameline, at 975. As such, Ameline faced a base offense level of 34, with a sentencing range of 151 to 188 months, whereas his offense level would have been 12, with a sentencing range of 10 to 16 months, based solely on Ameline’s admission of distributing a detectable amount of methamphetamine. Id. Significantly, for our purposes, Ameline held that the Blakely error required reversal and re-sentencing under either a plain error or harmless error standard. Id. at 967. Ameline also held that a defendant could raise the issue for the first time after an appeal was submitted for decision. Id. at 972.

In this case, it is undisputed that the indictment failed to allege any quantity of drugs. It is also undisputed that the jury did not find the quantity of drugs involved beyond a reasonable doubt. Finally, it is undisputed that the sentence imposed on Magana of 360 months — the floor of the Guidelines range which was itself determined in part by considerations of quantity — exceeded the statutory maximum of 20 years on any one count of conviction had no specific quantity of drugs been proven. See 21 U.S.C. § 841(b)(1)(C). As we acknowledged in our previous disposition, there is no doubt under these facts that Apprendi error occurred; the question was whether it required re-sentencing. Ameline makes it clear that re-sentencing is necessary.¹ Thus, we grant the petition for rehearing, vacate the memorandum disposition filed on January 13, 2003, vacate the sentence imposed by the district court, and remand for re-sentencing.²

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 Ninth Circuit Rule 36-3.

1 . Ameline also dictates that we vacate the sentence enhancement for obstruction of justice imposed on Magana pursuant to U.S.S.G. § 3C1.1 and remand to the district court for reconsideration in accord with this disposition.

2 . The resolution of this case based on Ameline makes it unnecessary to address the other issues presented in the petition for rehearing, notably the question of whether the district court properly imposed consecutive sentences under U.S.S.G. § 5G1.2. Compare United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc) with United States v. Jordan, 291 F.3d 1091, 1096 (9th Cir.2002). We do not reach the question of whether this case is controlled by Buckland or Jordan, nor do we reach the question as to whether Ameline affects the imposition of consecutive sentences in this context.