Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding D.C. No. CR-02-00003-VAP-2.
The opinion of the court was delivered by: Thompson, Senior Circuit Judge
Argued and Submitted April 7, 2009-Pasadena, Calfornia.
Before: Harry Pregerson and David R. Thompson, Circuit Judges, and Jeremy D. Fogel,*fn1 District Judge.
Esteban Raygosa-Esparza ("Raygosa-Esparza") challenges the new sentence imposed by the district court following his successful 28 U.S.C. § 2255 petition. We affirm.
Raygosa-Esparza was found guilty by a jury of two counts of conspiring to smuggle drugs into a federal prison, in violation of 21 U.S.C. § 846, and 18 U.S.C. § 1791(a)(2).
The indictment identified heroin, methamphetamine, and marijuana as objects of the conspiracy. Prior to trial, the parties stipulated to the type and quantity of the drugs involved in the offenses: nine and a half grams of heroin, six grams of methamphetamine, and eight and three-tenths grams of marijuana. The jury returned a general verdict on both counts; neither party requested a special verdict reflecting the drugs involved.
Raygosa-Esparza was sentenced to 210 months on each count. The district court imposed the two terms concurrently, along with three years supervised release and a special assessment of $200.
Several months later, Raygosa-Esparza filed a pro se motion under 28 U.S.C. § 2255. The government alerted the district court to a possible Apprendi error, though RaygosaEsparza had not raised the issue in his § 2255 petition. Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court found that Raygosa-Esparza's original sentence had been calculated in violation of Apprendi, because the sentence relied on the fact that his offense involved marijuana, heroin, and methamphetamine, a specific fact that was not found by the jury in its general verdict. The court granted RaygosaEsparza's § 2255 motion on this sole ground, and held that the jury's verdict supported a finding of guilty only with respect to the marijuana, which carried the lowest statutory maximums of the three drugs involved.
The government consented to resentencing in lieu of a new trial. The district court vacated the original sentence, and following a resentencing hearing, sentenced Raygosa-Esparza to terms of sixty months imprisonment for each offense, to be served consecutively. Raygosa-Esparza argues the prison terms should have been imposed to run concurrently, his sentence was vindictively imposed, and his Fifth and Sixth Amendment rights were violated by the court relying on facts not found by the jury.
Raygoza-Esparza's resentencing occurred on December 10, 2007, after the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). Reviewing his sentence under an abuse of discretion standard, "only a procedurally erroneous or substantively unreasonable sentence will be set aside." United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008 en banc). We review challenges to the ...