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The 2d U.S. Circuit Court of Appeals has expanded the application of the U.S. Supreme Court’s Apprendi holding in drug cases, ruling that drug quantities must be proved to a jury or admitted by a defendant for every aggravated drug offense, not only those that result in upward departures from the maximum prison sentence. The unanimous ruling in U.S. v. Gonzalez, No. 03-1356, written by Judge Reena Raggi, is the latest in a line of cases following the Supreme Court ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that jurors, not judges, must determine facts used to increase criminal sentences beyond the statutory maximum. Since Apprendi, the 2d Circuit decided in U.S. v. Thomas, 274 F.3d 655 (2001), that the drug quantity only becomes an “element of the offense” under 21 U.S.C. 841 when it is used to impose a sentence above the statutory maximum that applies to an indeterminate amount of drugs. In Gonzalez, however, the 2d Circuit said drug quantities must be considered elements in all prosecutions of aggravated � 841 offenses. By “aggravated” offenses, the court said it was referring to crimes under � 841(b)(1) that provide for enhanced penalties for drug trafficking in specified quantities. The court said drug quantities must be proved in these cases even if the final sentence amounts to the statutory minimum under the enhanced penalty statute, as it was in Gonzalez. “The drug quantities specified in 21 U.S.C. �841 are elements that must be pleaded and proved to a jury or admitted by a defendant to support any conviction on an aggravated drug offense, not simply those resulting in sentences that exceed the maximum otherwise applicable for an identical unquantified drug crime,” Raggi wrote. The result of the ruling was a vacated conviction for Manuel Gonzalez, who was sentenced to 20 years in prison after he pleaded guilty to a single-count indictment for conspiracy to distribute crack cocaine. The court said Gonzalez’s plea should be vacated, adding that the government could then proceed to trial on an aggravated charge. Gonzalez pleaded guilty before Apprendi was decided, but was sentenced after both Apprendi and the 2d Circuit ruling in Thomas. While he pleaded guilty to the indictment, he challenged the amount of crack-50 grams-that he was charged with conspiring to sell. He claimed that he planned to mix far less crack with a another substance and dupe his buyer. The amount had a considerable effect on Gonzalez’s sentence. Since he had a prior conviction in New York state, a determination that Gonzalez conspired to sell 50 grams of crack meant the difference between a statutory minimum sentence of 10-years-to-life and a minimum of 20-years-to-life. When Gonzalez pleaded guilty, he was asked by Southern District of New York Judge John Martin, now in private practice, if he understood that he would spend 20 years in prison if the court determined that he conspired to sell 50 grams. At a hearing to determine the drug amount and his sentence, Gonzalez testified that he routinely sold counterfeit crack. In the end, the judge determined that Gonzalez was not credible and ruled in favor of the government on the amount of crack. Gonzalez then moved to withdraw his plea, arguing that he did not admit to the necessary amount to trigger the longer sentence, and that he had been misled about his right to have a jury determine the amount of crack in question. The motion was denied. On appeal, the government argued that the lower court was correct because Gonzalez received a mandatory minimum sentence that was not in excess of the prescribed maximum for an identical unquantified crime under � 841(b)(1)(C). But Raggi said that Gonzalez’s guilty plea “could not be deemed knowing, voluntary, or sufficient.”

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