UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee MUSCHIK, Defendant-Appellant

On January 22, 1996, the Supreme Court vacated this court’s decision in United States v. Muschik, 49 F.3d 512 (9th Cir.1995), and remanded the case to us for further consideration in light of its recent decision, Neal v. United States, 516 U.S.-, 116 S.Ct. 763 , 133 L.Ed.2d 709 (1996). We now affirm the sentence that the district court originally imposed on December 6, 1993.

I.

Richard Lee Muschik was arrested on May 24, 1991, by the Drug Enforcement Administration pursuant to a complaint charging him with conspiracy to possess with intent to distribute and actual distribution of LSD in violation .of 21 U.S.C. §§ 841 (a)(1) and 846. On March 12, 1992, Muschik pleaded guilty to conspiracy to distribute LSD. At Muschik’s sentencing,, the district court determined that the .amount of LSD involved required application of the mandatory minimum provision of 21 U.S.C. § 841(b)(1)(A). Pursuant to this statute, and in light of Muschik’s prior state felony drug conviction, Muschik was sentenced to a term of twenty years.

Muschik appealed. We vacated the district court’s sentence and remanded for re-sentencing in strict compliance with the inquire and inform provisions of 21 U.S.C. § 851…