Hoey

MEMORANDUM **

Jeffrey Brian Hoey appeals his 60-month sentence imposed following his jury trial conviction for conspiracy to manufacture marijuana, in violation of 21 U.S.C. §§ 841 (a)(1) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . Reviewing de novo, United States v. Arellano-Rivera, 244 F.3d 1119, 1127 (9th Cir.2001), we affirm.

Hoey contends that because the jury did not determine the issue of marijuana quantity, the district court erred by sentencing him under 21 U.S.C. § 841 (b)(1)(D), instead of § 841(b)(4). Hoey’s otherwise judicially estopped contention is without merit.

The jury found Hoey guilty of conspiring to manufacture marijuana, therefore the penalty provision for distribution under § 841(b)(4) does not apply. Moreover, we have concluded that the five-year maximum under § 841(b)(1)(D) applies to § 841(a) convictions for an undetermined amount of marijuana. See United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000), 2 overruled in part by United States v. Buckland, 277 F.3d 1173, 1181 (9th Cir. 2002) (en banc) (overruling Nordby’s conclusion that Congress committed drug quantity to the sentencing judge to decide by a…