and Submitted October 15, 2015 Seattle, Washington
from the United States District Court for the District of
Montana Sam E. Haddon, Senior District Judge, Presiding D.C.
Timothy M. Bechtold (argued), Bechtold Law Firm, PLLC,
Missoula, Montana, for Defendant-Appellant.
B. Baucus (argued) and Michael S. Lahr, Assistant United
States Attorneys; Michael W. Cotter, United States Attorney;
United States Attorney's Office, Helena, Montana; for
Before: Alex Kozinski, William A. Fletcher and Raymond C.
Fisher, Circuit Judges.
panel vacated a sentence and remanded for resentencing in a
case in which the jury made a special finding that the
quantity of drugs involved was less than 50 grams, but the
district judge calculated the sentence based on his own
finding that the quantity involved was far in excess of 50
panel wrote that the Apprendi v. New Jersey line of
cases is beside the point because the defendant is not
complaining that the district court raised the maximum
statutory sentence, and that this is not a case where the
jury failed to find a fact under the exacting standard
applicable to criminal cases. The panel explained that this
is a case where the jury made an affirmative finding after
deliberations, under the highest standard of proof, that the
amount of methamphetamine attributable to the defendant is
less than 50 grams. The panel held that district judges do
not have the power to contradict the jury's finding under
these circumstances. The panel remanded with instructions
that the defendant be resentenced on the premise that the
quantity of drugs involved in his crimes was less than 50
panel held that because two witness's hearsay statements
did not meet the "minimal indicia of reliability"
standard, the district court was not justified in relying on
them in determining the sentence. Because absent these
statements, there is no evidence that the defendant exercised
some control over others involved in the commission of the
evidence, the panel held that the district court clearly
erred in assessing an organizer enhancement pursuant to
U.S.S.G. § 3B1.1(c).
KOZINSKI, Circuit Judge:
jury in defendant's criminal case made a special finding
that the quantity of drugs involved was "less than 50
grams." We consider whether the district judge may
nevertheless calculate defendant's sentence based on the
judge's finding that the quantity involved was far in
excess of 50 grams.
was convicted of possession of methamphetamine with intent to
distribute and conspiracy to possess with intent to
distribute, in violation of 21 U.S.C. §§ 841(a)(1)
and 846. The punishment for both of these crimes is
determined by section 841(b), which sets differential
punishments, depending on drug type and quantity. If the
quantity involved is less than 50 grams or an indeterminate
amount, then the maximum sentence is 20 years. §