United States v. Nordby
criminal; direct appeal from resentencing after jury conviction for marijuana manufacture, possession with intent to distribute and conspiracy; defendant challenges (plain-error review) the ten-year sentence imposed under § 841(b)(1)(A)(vii) on a judge's preponderance finding of drug quantity; sentence vacated and remanded for resentencing within the five-year maximum supported by the verdict (result: claimant-lost)
Facts
- 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not law
We hold that the amount of drugs for which a defendant is sentenced under 21 U.S.C. § 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.
- 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not law
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.”
- 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not law
The court found by a preponderance of the evidence that Nordby was responsible for 1000 or more marijuana plants.
- 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not law
First, Nordby’s jury made no finding regarding the specific amount of marijuana that Nordby manufactured, possessed with intent to distribute, or conspired to possess with intent to distribute.
- 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not law
Thus, under Apprendi the “prescribed statutory maximum” for a single conviction under § 841 for an undetermined amount of marijuana is five years.
- 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not law
We conclude that the district court erred by sentencing Nordby under 21 U.S.C. §§ 841 and 846 for manufacturing, possessing with intent to distribute and conspiring to possess with intent to distribute 1000 or more marijuana plants without submitting the question of marijuana quantity to the jury and without a finding that the marijuana quantity had been proved beyond a reasonable doubt.
- 7 Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook) not law
Although it was uncontested at trial that over 2000 marijuana plants were found growing on land owned by Nordby, Nordby consistently maintained that he was not responsible for growing these plants, or for conspiring to do so at the time charged in the indictment.