United States v. Jeffrey Joe Alerta

I.

Defendant Jeffrey James Alerta appeals his convictions and sentences for conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 (Count 1); conspiracy to use firearms during and in relation to drug trafficking in violation of 18 U.S.C. § 371 (Count 2); distribution of methamphetamine in violation of 21 U.S.C. § 841 (a)(1) (Count 3); possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841 (a)(1) (Count 4); and use of a firearm during and in relation to drug trafficking in violation of 18 U.S.C. § 924 (e)(1) (Count 5).

Alerta raises two points on appeal that have merit: (1) he contends that the fact that the weapon he used or carried was a machine gun, which added 25 years to his sentence, is an element of the crime under section 924(c)(1) that must be found by the jury; and (2) he contends that he was improperly convicted and given consecutive sentences for two conspiracies when there was only one.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . We reverse the conviction on Count 5 because the jury did not expressly find that Alerta carried or used a machine gun, and nothing in the jury’s verdicts leads…