Hunt

dissenting:

The court orders Hunt’s sentence effectively reduced from fifteen years to time served because the trial judge who took his guilty plea failed to seek an explicit admission that Hunt knew that the illegal drug he ordered, picked up, and possessed was cocaine. In my view, this error was harmless in light of the overwhelming and uncontroverted evidence that Hunt knew exactly what he was doing.

The majority does not really dispute this. Instead, it promulgates a new rule for this circuit, essentially eliminating harmless error review of Apprendi violations. Because of such unwarranted change in our sentencing jurisprudence, I must respectfully dissent.

I

A

In January 2004, the Anchorage Police Department received information that a man named “Stacy” was trafficking cocaine into Alaska by hiding it in candles. Later, law enforcement officers intercepted a package at the Anchorage airport which contained 1.2 kilograms of cocaine hidden inside candles. A controlled delivery was executed at the address listed on the package. A woman signed for the package and put it in the trunk of a car. Police then saw the defendant, Stacy Hunt, remove the package from the trunk of the…

Opinion by Judge PAEZ; Dissent by Judge O’SCANNLAIN.

OPINION

The district court sentenced Appellant Stacy Hunt to 180 months in prison after he pled guilty to attempting to possess a controlled substance with the intent to distribute in violation of 21 U.S.C. §§ 841 (a), 846. Hunt appeals his sentence but not his conviction. He alleges that the district court erred under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), by sentencing him for attempted possession with intent to distribute an unspecified amount of cocaine even though he never admitted that he attempted to possess cocaine. We conclude that the district court erred under Apprendi and that the error was not harmless. Accordingly, we reverse and remand for resentencing.

I. Background

Acting on a tip, police intercepted a suspicious Federal Express package at the airport in Anchorage, Alaska, on January 26, 2004. The police brought in a drug-sniffing dog that alerted to the package. After obtaining a search warrant, the police opened the package and discovered it contained approximately one kilogram of cocaine hidden in candles. The police removed most of the cocaine and resealed the…

Allison E. Mendel, Mendel & Associates, Anchorage, AL, for the appellant.

Andrea T. Steward, Assistant United States Attorney, Anchorage, AL, for the appellee.

Before: ROBERT R. BEEZER, DIARMUID F. O'SCANNLAIN, and RICHARD A. PAEZ, Circuit Judges.

Opinion by Judge PAEZ; Dissent by Judge O'SCANNLAIN.

PAEZ, Circuit Judge:

The district court sentenced Appellant Stacy Hunt to 180 months in prison after he pled guilty to attempting to possess a controlled substance with the intent to distribute in violation of 21 U.S.C. §§ 841 (a), 846. Hunt appeals his sentence but not his conviction. He alleges that the district court erred under Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), by sentencing him for attempted possession with intent to distribute an unspecified amount of cocaine even though he never admitted that he attempted to possess cocaine. We conclude that the district court erred under Apprendi and that the error was not harmless. Accordingly, we reverse and remand for resentencing. [1]

Acting on a tip, police intercepted a suspicious Federal Express package at the airport in Anchorage, Alaska, on January 26, 2004. The police brought in a…