United States v. Laron Kevin Kortgaard

Laron Kevin Kortgaard appeals his conviction and sentence for manufacturing marijuana. We have jurisdiction under 28 U.S.C. § 1291 . We affirmed Kortgaard’s conviction in an unpublished Memorandum and deferred submission of the sentencing issues. United States v. Kortgaard, 119 Fed.Appx. 148 (9th Cir.2005). We now hold that upward departures under § 4A1.3 of the United States Sentencing Guidelines involve factual findings beyond the fact of a prior conviction. Because Kortgaard’s sentence was increased under § 4A1.3 and exceeds the maximum authorized sentence based solely on the jury’s verdict under the then-mandatory Sentencing Guidelines, we vacate the sentence and remand for resentencing in light of United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

Factual and Procedural History

Kortgaard was originally charged with manufacturing marijuana based on his cultivation of 50 or more plants and possession with intent to distribute the same amount. A jury acquitted Kortgaard of possession with intent to distribute but convicted him of manufacturing marijuana in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(C). Based on the jury verdict and Kortgaard’s…