USA v. Nordby

• Decision Date: 10 July 2000
• Docket Number: No. 99-10191,99-10191
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KAYLE NORDBY, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1053

225 F.3d 1053 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KAYLE NORDBY, Defendant-Appellant.

No. 99-10191

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted July 10, 2000--San Francisco, California

Filed September 11, 2000

[Copyrighted Material Omitted]

COUNSEL: J. Douglas Wilson, Jonathan Schmidt, Assistants United States Attorney, San Francisco, California, for the plaintiff-appellee.

Linda M. Leavitt, San Francisco, California, for the defendant-appellant.

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

Vaughn R. Walker, District Judge, Presiding D.C. No. CR-94-00086-VRW

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

OPINION

CANBY, Circuit Judge:

In this case we are called upon to apply the Supreme Court's recent decision in Apprendi v. New Jersey, No. 120 S. Ct. 2348 (2000). Apprendi held that a fact that increases the prescribed statutory maximum penalty to which a criminal defendant is exposed must be submitted to a jury and proven beyond a reasonable doubt. Id. at 2362-63. We hold that the amount of drugs for which a defendant is sentenced under 21 U.S.C. S 841(b)(1) is such a fact, and that our existing precedent to the contrary is overruled to the extent that it is inconsistent with Apprendi.

Kayle Nordby was convicted and sentenced under 21 U.S.C. SS 841 and 846, but a jury never determined beyond a reasonable doubt the quantity of drugs for which he was responsible. Instead, a judge made that determination at sentencing and did so under the standard of preponderance of the evidence. The judge's determination increased the prescribed statutory maximum to which Nordby was exposed beyond that supportable by the jury's findings; in Nordby's case the judge's finding increased Nordby's maximum exposure from five years to life imprisonment. Moreover, Nordby was sentenced to ten years in prison, a term that exceeds the five year maximum supported by the jury's findings. We therefore vacate Nordby's sentence and remand for imposition of a sentence not to exceed the statutory maximum applicable to the facts as found by the jury beyond a reasonable doubt.

FACTUAL BACKGROUND

On September 28, 1993, federal and state police searched four properties in Humboldt County, California. On two of the parcels owned by Kayle Nordby, police found thirty-one outdoor marijuana gardens containing 2,308 marijuana plants as well as an indoor growing shed that had been used to grow marijuana. Police subsequently arrested Nordby, Cory Marchese, Terry Medd, Jeb Stafslien, and Sam Stafslien, and they were indicted for conspiracy to possess with intent to distribute marijuana, manufacture of marijuana, and possession of marijuana with intent to distribute in violation of 21 U.S.C. SS 841(a)(1) and 846. The counts for manufacture and possession with intent to distribute specified 2308 marijuana plants. The conspiracy charged in the indictment was alleged to have run from "on or about August 1, 1993, and continu[ed] to on or about September 28, 1993."

At Nordby's trial, the district court instructed the jury that it need not determine the amount of marijuana that Nordby manufactured, possessed or conspired to possess with intent to distribute. Instead, the jury was instructed that "the government is not required to prove the amount or quantity of marijuana manufactured as long as the government proves beyond a reasonable doubt that defendants manufactured a measurable or detectable amount of marijuana." Nordby was convicted by the jury on all three counts.

At sentencing, Nordby admitted that he had grown some marijuana on the property in 1992 and the spring of 1993, but hotly contested the amount of marijuana that the government sought to attribute to him during the period from August to September 1993 charged in the indictment. Nordby admitted that he had conspired with Jeb and Sam to grow marijuana in 1992, but insisted that their partnership had dissolved by 1993. Nordby further admitted that he had conspired with Cory Marchese to grow about 200 marijuana plants indoors in 1993, but asserted that this conspiracy ended by June 1993. Nordby pointed out that he and Marchese had been in Minnesota and Costa Rica from late July 1993 until five days before their arrest on September 28, 1993. Finally, Nordby contended that unknown "guerilla growers" were responsible for planting and tending gardens 23-31; he claimed that this practice of maintaining a "guerilla" garden was common in Humboldt County.

The district court applied United States Sentencing Guidelines Manual ("U.S.S.G.") S 1B1.3 to determine the amount of marijuana for which Nordby was responsible at sentencing. The court found by a preponderance of the evidence that Nordby was responsible for 1000 or more marijuana plants. Under 21 U.S.C. S 841(b)(1)(A)(vii), the district court's finding subjected Nordby to a statutory minimum sentence of ten years in prison and a statutory maximum of life. The district court sentenced Nordby to the ten-year minimum.

On Nordby's first appeal of his sentence, we held that the district court had made insufficient findings at sentencing. We vacated and remanded for resentencing. United States v. Nordby, No. 97-10095, 1998 WL 476113, at *9-10 (9th Cir. July 30, 1998). At resentencing on March 25, 1999, the district court again determined that Nordby was responsible for 1000 or more marijuana plants under 21 U.S.C. S 841(b)(1)(A)(vii) and sentenced Nordby to ten years. Nordby appeals from this resentencing.

APPLICATION OF APPRENDI

Apprendi v. New Jersey is the latest in a series of cases in which the Supreme Court has expressed a heightened concern that the determination of "sentencing factors" by a judge using a preponderance-of-the-evidence standard implicates the accused's right to due process under the Fifth Amendment and right to a jury trial under the Sixth. Thus, in Jones v. United States, 526 U.S. 227 (1999), the Court noted these constitutional problems but avoided them by construing the enhancement provisions of 18 U.S.C. S 2119, the federal carjacking statute, to establish separate offenses that must be charged by indictment, submitted to a jury and proven beyond a reasonable doubt. Jones, 526 U.S. at 251-52. There, the Court observed:

The dissent repeatedly chides us for failing to state precisely the principle animating our view that the carjacking statute, as construed by the Government, may violate the Constitution. The preceding paragraph in the text expresses that principle plainly enough, and we re-state it here: under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because our prior cases suggest rather than establish this principle, our concern about the Government's reading of the statute rises only to the level of doubt, not certainty.

Id. at 243 n.6 (internal citation omitted).

Jones turned ultimately on a question of statutory interpretation. But in Apprendi, the constitutional question was "starkly presented." Apprendi, 120 S. Ct. at 2355. The Court held that:

In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case:"[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." 526 U.S. at 252-53, 119 S. Ct. 1215 (opinion of STEVENS, J.); see also id. at 523, 119 S. Ct. 1215 (opinion of SCALIA, J.). Id. at 2362-63.¹ The Court then applied this principle to vacate the sentence of Charles Apprendi. Apprendi had been convicted in state court of possession of a firearm for an unlawful purpose, a " `second degree' offense" punishable by imprisonment for between five to ten years. Id. at 2351-52. At sentencing, however, a judge found by a preponderance of the evidence that Apprendi had committed his crime with a purpose to intimidate individuals because of race, which finding increased Apprendi's sentence under New Jersey's hate crime law to imprisonment between ten and twenty years. Id. at 2351, 2352. This increase in the prescribed statutory maximum penalty to which Apprendi was exposed violated Apprendi's constitutional rights under the Fifth and Sixth Amendments because the factual determination that had served to elevate his maximum statutory exposure had not been submitted to a jury and proved beyond a reasonable doubt. Id. at 2362-63.

We conclude that we are unable to give a construction to the statute before us that would avoid the constitutional issue raised by Apprendi. See, e.g., Castillo v. United States, 120 S. Ct. 2090, 2091 (2000) (determination that "firearm" was a "machinegun" was not a sentencing factor but an element of 18 U.S.C. S 924(c)(1) (1988 & Supp. V)). Existing precedent in this circuit states plainly that Congress did not intend drug quantity to be an element of the crime under 21 U.S.C. SS 841 and 846, and that a defendant may be sentenced under these provisions pursuant to a finding made by a judge at sentencing under a preponderance of the evidence standard. See United States v. Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir. 1991). Section 841 plainly distinguishes between elements and sentencing factors. Section 841(...