Elfand

MEMORANDUM *

Appellant Blake Elfand appeals his sentence upon a guilty plea pursuant to a written agreement for conspiracy to possess marijuana with the intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

1. Elfand argues that the government must satisfy a clear and convincing evidentiary standard rather than the preponderance of the evidence standard when the court determines the quantity of drugs applicable to a defendant’s sentence. In fact, in light of the Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), the drug quantity attributable to a defendant’s sentence must be submitted to a jury and proven beyond a reasonable doubt. Id. at 2362-63. Therefore, the district court committed Apprendi error when it determined the amount of drugs to be used in calculating Elfand’s base offense level. See Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348, 2362-63 , 147 L.Ed.2d 435 (2000). This finding by the district court increased the statutory maximum penalty to which Elfand was exposed from five years to life. Because the issue of drug quantity was…