United States v. Chichil

MEMORANDUM **

Lorenzo Gomez Chichil appeals from the 180-month sentence imposed upon remand from this court. He was convicted by a jury of distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1); conspiracy, in violation of 21 U.S.C. § 846; and illegally carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

Chichil contends on appeal, as he did at the de novo resentencing, that the mandatory minimum sentence of 120 months under 21 U.S.C. § 841(b)(1)(A) was unconstitutional because the sentence imposed was based on judge-found facts regarding the quantity of drugs involved. We agree. The district court’s use of a statutory sentencing range that exposed Chichil to a higher maximum than that permitted by the jury’s finding violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Velasco-Heredia, 319 F.3d 1080, 1085 (9th Cir. 2003).

VACATED and REMANDED.