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Name: U.S. v. Nordby
Case #: 99-10191
Court: US Court of Appeals
District 9 Cir
Opinion Date: 09/11/2000
Subsequent History: None

Under Apprendi v. New Jersey (2000) 530 U.S. — [147 L.Ed.2d 435, 120 S.Ct. 2348], the district court erred in sentencing appellant based on a finding it made by a preponderance of the evidence, that appellant possessed 1000 or more marijuana plants. The question of the marijuana quantity should have been submitted to the jury and should have been required to be proved beyond a reasonable doubt. And although Apprendi was decided after appellant was sentenced in this case, and appellant therefore understandably did not object to the sentence on these grounds, the Court of Appeals can still only grant relief where the court’s failure to submit the quantity issue to the jury constitutes plain error. This was error, and it was plain. Moreover, it did affect substantial rights because appellant did contest the quantity issue and raise evidence sufficient to support a contrary finding. Under these circumstances, an error cannot be harmless under Neder v. United States (1999) 527 U.S. 18, 19. Finally, the Apprendi error seriously affected the fairness and integrity of the proceedings because guilt beyond a reasonable doubt is the bedrock of our system. On remand, because appellant appealed only his sentence, retrial of the conviction is not an option. Accordingly, the court remanded for resentencing subject to the maximum sentence supported by the facts found by the jury beyond a reasonable doubt. Judge Reinhardt concurred specially.