Castro

MEMORANDUM *

On Remand from the United States Supreme Court

Juan Benito Castro was convicted and sentenced for conspiracy to possess cocaine with intent to distribute it, and for possession of cocaine with intent to distribute it. See 21 U.S.C. §§ 841 (a)(1) and 846. He appealed, and we affirmed. See United States v. Castro, No. 97-50590, 2000 WL 898734 (9th Cir. July 6, 2000) (unpublished disposition) (Castro I). However, the Supreme Court vacated our disposition and remanded for further consideration 1 in light of its holding in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000).

With the magnificent hindsight conferred upon us by Apprendi , we agree with Castro and the government that the district court plainly erred when it sentenced Castro to life imprisonment. The failure to submit the issue of drug quantity to the jury made it improper to rely upon quantity when the maximum possible statutory sentence was determined. See United States v. Nordby, 225 F.3d 1053, 1058-59 (9th Cir.2000); see also Apprendi, 530 U.S. at 490 , 120 S.Ct. at 2362-63 . The district court should, therefore, have looked to 21 U.S.C. § 841 (b)(1)(C), rather than to 21…