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The 2nd 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 beyond the maximum prison sentence. The ruling in U.S. v. Gonzalez, 03-1356, 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 2nd Circuit has decided U.S. v. Thomas, 274 F.3d 655 (2001), U.S. v. McLean, 287 F.3d 127 (2002), U.S. v. Outen, 286 F.3d 622 (2002) and Coleman v. United States, 329 F.3d 77 (2003), all dealing with the application of Apprendi to drug crimes. In Thomas, the 2nd Circuit held 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 2nd 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 was the case 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 for the unanimous court. 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 charging a 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 2nd Circuit ruling in Thomas. While he pleaded guilty to the indictment, he specifically 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 counterfeit 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’s 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 had conspired to sell 50 grams. At a hearing to determine the drug amount and his sentence, Gonzalez testified that he routinely sold counterfeit crack. Martin characterized the matter as a “very difficult case” that could turn on the “burden of proof.” In the end, he determined that Gonzalez was not a credible witness 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. Martin at one point seemed inclined to grant the motion, saying at a January 2003, status conference, “I am troubled about the allocution, whether I should not have made it more clear to the defendant his specific offense to which he was pleading.” But he eventually denied the motion to withdraw the plea. On appeal, the government argued that Martin 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). PLEA NOT VOLUNTARY In rejecting that argument, Raggi said Gonzalez’s guilty plea “could not be deemed knowing, voluntary, or sufficient.” She said the government could accept a plea to a lesser disposition and sentence Gonzalez under the zero-to-30-year range under 841(b)(1)(C). Raggi added: “The sentencing ranges prescribed in �841 for aggravated drug offenses may not be deconstructed so that quantity operates as an element for purposes of determining an applicable maximum but as a sentencing factor for purposes of determining an applicable minimum. Thus, where a drug quantity specified in �841(b)(1)(A) or (b)(1)(B) is neither proved to a jury nor admitted by a defendant, a district court is not required to impose the minimum sentence mandated by those sections even if it may impose that same sentence pursuant to �841(b)(1)(C).” Judges Robert D. Sack and Sonia Sotomayor concurred on the ruling. Tracy W. Young and Lisa Scolari represented Gonzalez. Assistant U.S. Attorneys Roberto Finzi and Neil M. Barofsky represented the government.

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