Opinion
Argued and Submitted November 4, 2003.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendants were convicted in the United States District Court for the District of Montana, Jack D. Shanstrom, J., of narcotics trafficking and money laundering, and they appealed their sentences. The Ninth Circuit Court of Appeals, Noonan, Circuit Judge, 285 F.3d 759, affirmed in part and vacated and remanded in part. On appeal after remand, the Court of Appeals, 18 Fed.Appx. 486, affirmed. On appeal after new sentencing hearing, the Court of Appeals held that federal district court did not violate Apprendi ruling by stacking the statutory maximum terms for two convictions in marijuana conspiracy case, even though drug quantity was not submitted to the jury.
Affirmed.
Appeal from the United States District Court for the District of Montana, Jack D. Shanstrom, District Judge, Presiding.
Page 172.
Lori Harper Suek, Esq., Office of the U.S. Attorney, Great Falls, MT, for Plaintiff-Appellee.
Timothy J. Cavan, Esq., Robin B. Hammond, Esq., Federal Public Defenders of
Montana, Billings, MT, for Defendant-Appellant.
Before WARDLAW, GOULD, and PAEZ, Circuit Judges.
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.
Pedro Hernandez brings these consolidated appeals from the imposition of sentence following his convictions in United States v. Rodriguez, the "marijuana conspiracy case," and United States v. Hernandez, the "money laundering case." We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
We reject Hernandez's assertion of Apprendi error in his marijuana conspiracy case. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Drug identity was an element of the offense charged in the marijuana conspiracy case, which had to be proven beyond a reasonable doubt. Jury Instruction 34, for example, required the government to prove beyond a reasonable doubt that "the defendant intentionally delivered marijuana." While drug quantity was not submitted to the jury, the district court correctly calculated Hernandez's sentence because "the 'prescribed statutory maximum' for a single conviction under [21 U.S.C. § 841(b)(1)(D) ] for an undetermined amount of marijuana is five years." United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000), overruled on other grounds by United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc ). This five year sentence dictated by 21 U.S.C. § 841(b)(1)(D) was then properly doubled pursuant to a notice filed under 21 U.S.C. § 851, which increases punishment due to prior felony drug convictions. Therefore, Hernandez's sentence in the marijuana conspiracy case does not violate Apprendi. We have previously ruled that it is proper to stack the statutory maximum terms and thus the district court did not err in doing so here. Buckland, 289 F.3d at 570.
Because the district court did not err in calculating Hernandez's sentence in the marijuana conspiracy case, it follows that the sentence in the money laundering case was also properly calculated.
AFFIRMED.