United States v. Arturo Daniel Velasco-Heredia, AKA Arturo Velasco-Heredia
Opinion
Opinion
Trott, J.
ORDER
Further action on the petition for rehearing was deferred until the final disposition of U.S. v. Buckland, No. 99-30285 was entered. With the filing of the new opinion in this case the petition for rehearing is rendered MOOT.
OPINION
This case requires us to assess the effect of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), as refined by Harris v. United States, 536 U.S. 545 , 122 S.Ct. 2406 , 153 L.Ed.2d 524 (2002), on the prosecution of a federal drug case conducted during the embryonic stages of the sentencing revolution occasioned by Apprendi . Specifically, we must decide whether the district judge erred after a bench trial by employing over objection the preponderance of evidence standard of proof to determine the amount of marijuana attributable for sentencing purposes to Defendant-Appellant Arturo Velasco-Heredia (“Velasco-Heredia”), and, if the judge did err, whether the error was harmless beyond a reasonable doubt.
We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 , and for the reasons explained below, we affirm Velasco-Heredia’s conviction but reverse his sentence.