United States v. Ramirez-Elias

126 F. App'x 83

• Court: Court of Appeals for the Third Circuit
• Decided: April 18, 2005
• Docket: 03-3724, 03-3725
• Status: Unpublished

Opinion

OPINION OF THE COURT

PER CURIAM.

This is a direct appeal in a criminal case. Adrian Ramirez-Elias pled guilty to two counts involving a conspiracy to possess and distribute over 1,000 kilograms of marijuana and was sentenced to the mandatory minimum sentence of 10 years for each crime.

Prior to sentencing, Ramirez-Elias argued that the penalty provision of the statute under which he was to be sentenced, 21 U.S.C. § 841(b)(1)(A), was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the statute requires a judge to determine the amount of narcotics in question, whereas Apprendi states a constitutional requirement that the jury determine this amount. Our opinion in United States v. Kelly, 272 F.3d 622 (3d Cir.2001), 1 has foreclosed this argument in this Circuit. See also United States v. Pray, 373 F.3d 358, 360 n. 1 (3d Cir.2004); United States v. Chorin, 322 F.3d 274, 282 fn. 4 (3d Cir.2003). The Supreme Court’s recent decision in United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), does not change this result. See, e.g., United States v. Collins, 401 F.3d 212 (4th Cir.2005) (reaffirming post-Booker that § 841 is constitutional under Apprendi).

Ramirez-Elias was sentenced pursuant to the United States Sentencing Guidelines. Having determined that issues with respect to Booker are best determined by the District Court in the first instance, we vacate the sentence and remand for resentencing in accordance with that opinion.

1 . We see no conflict between Kelly and United States v. Barbosa, 271 F.3d 438 (3d Cir.2001), or any other decision of our Court cited by Ramirez-Elias.