234 F.3d 483 (9th Cir. 2000), 99-10435, United States v. Guizar

Docket Nº:99-10435
Citation:234 F.3d 483
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CONRADO GARCIA-GUIZAR, Defendant-Appellant.
Case Date:September 20, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 483

234 F.3d 483 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CONRADO GARCIA-GUIZAR, Defendant-Appellant.

No. 99-10435

United States Court of Appeals, Ninth Circuit

September 20, 2000

Argued and Submitted July 10, 2000

Amended December 6, 2000

Page 484

[Copyrighted Material Omitted]

Page 485

Ann C. McClintock, Assistant Federal Defender, Sacramento, California, for the defendant-appellant.

William S. Wong, Thomas E. Flynn, Assistant United States Attorneys, Sacramento, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California

Page 486

Garland E. Burrell, District Judge, Presiding. D.C. No.CR-95-00411-GEB

Before: William C. Canby, Jr., Stephen Reinhardt, and Ferdinand F. Fernandez, Circuit Judges.

ORDER

CANBY, Circuit Judge:

The opinion filed in this matter on September 20, 2000, and reported at 227 F.3d 1125, is amended as follows:

At 227 F.3d at 1127, delete the last sentence of the second paragraph of the opinion (beginning "We do not notice . . ."). For the deleted sentence, substitute the following:

We conclude that the error was harmless beyond a reasonable doubt, however, because the Apprendi error did not affect Garcia's sentence.

The citation to United States v. Nordby then follows.

At 227 F.3d at 1129, delete the second full paragraph on the page (beginning "Because Garcia did not object . . .") and the first sentence of the paragraph immediately following (beginning "Garcia founders . . ."). For the deleted passage, substitute the following:

Although Apprendi had not been decided at the time of Garcia's sentencing, Garcia argued in his sentencing memorandum that the amount of drugs for which he was to be sentenced had to be pleaded and found by the jury beyond a reasonable doubt. He relied on Apprendi's predecessor, Jones v. United States, 119 S.Ct. 1219 (1999). Garcia therefore raised the Apprendi issue, and his sentence cannot stand unless the district court's constitutional Apprendi error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967) .

It appears beyond a reasonable doubt that the Apprendi error did not affect Garcia's sentence.

The next sentence (beginning "At resentencing . ..") then follows without a paragraph break.

At 227 F.3d at 1130, in the third and fourth lines of the left column, delete "Garcia was not prejudiced by the error." Substitute therefor "any error was harmless beyond a reasonable doubt."

At 227 F.3d at 1130, in lines 12-13, insert a period after "Garcia's sentence" and delete the remaining words of the sentence and the citation: "or his substantial rights. Olano, 507 U.S. at 732, 113 S.Ct. 1770."

The full amended opinion follows.

The panel has unanimously voted to deny the petition for panel rehearing. Judges Reinhardt and Fernandez have voted to deny the petition for rehearing en banc, and Judge Canby has so recommended.

The petition for en banc rehearing has been circulated to the full court, and no judge of the court has requested a vote on the petition for rehearing en banc. Fed. R. App. P. 35(b).

The petition for panel rehearing and the petition for rehearing en banc are denied.

OPINION

Conrado Garcia-Guizar appeals from his resentencing by the district court pursuant to his conviction on four drug counts under 21 U.S.C. § 841 and one count of criminal forfeiture under 21 U.S.C. § 853(a)(1). We affirm.

Two major questions are presented. First, the district court's finding of drug quantity under 21 U.S.C.S 841(b)(1), which was made at sentencing under a preponderance-of-the evidence standard, was error under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), because it increased the statutory

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maximum sentence beyond that which the jury's findings could support. We conclude that the error was harmless beyond a reasonable doubt, however, because the Apprendi error did not affect Garcia's sentence. See United States v. Nordby, 225 (9th Cir.2000).

Second, the district court on resentencing corrected an error in the method of calculating the amount of drugs establishing Garcia's base offense level at his original sentencing, with the result that Garcia's new sentence was 33 months longer than his original sentence. We conclude that the correction of this error did not evidence vindictiveness or violate due process; we therefore affirm the new sentence.

FACTUAL BACKGROUND

The facts of Garcia's arrest and conviction are set out extensively in our opinion deciding Garcia's appeal from his initial sentencing. See United States v. Garcia-Guizar, 160 F.3d 511 (9th Cir. 1998). Garcia was convicted on six counts: (1) conspiracy to distribute methamphetamine (count one) in violation of 21 U.S.C. §§ 846, 841; (2) distribution of methamphetamine (counts two to four) in violation of 21 U.S.C. § 841; (3) possession of marijuana with intent to distribute (count five) in violation of 21 U.S.C. § 841; and (4) criminal forfeiture (count six) under 21 U.S.C.S 853(a)(1).

At sentencing, the district court adopted the findings in the first presentence report. The report based Garcia's recommended offense level on the amount of methamphetamine mixture involved. The probation officer stated in the report that the amount of pure methamphetamine also could be used, but that he had not selected this alternative "to avoid unnecessary controversy." The Guidelines, however, permitted no such choice; the court was required to select the method that would lead to a higher offense level. See U.S.S.G. § 2D1.1(c) (1995).1 In Garcia's case, calculation on the basis of pure...

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