Pimentel-Lopez

join, dissenting from denial of rehearing en banc:

I respectfully dissent from the denial of rehearing en banc. The panel held that when a jury finds that the amount of drugs the government has proved, beyond a reasonable doubt, is attributable to a defendant falls within a specified range, the sentencing judge may not find by a preponderance of the evidence that the amount of drugs attributable to the defendant is higher than that range. United States v. Pimentel-Lopez, 828 F.3d 1173, 1176-77 (9th Cir. 2016). That holding is wrong both as a matter of logic and as a matter of Supreme Court law, it has far-reaching consequences for the prosecution of drug crimes in our circuit, and it conflicts with holdings in other circuits. For all those reasons, we should have reheard this case en banc.

I

A jury convicted Defendant Jesus Pi-mentel-Lopez of possessing methamphetamine, with intent to distribute it, and conspiracy to accomplish the same. The jury found specifically that the government had proved its case beyond a reasonable doubt with respect to less than 50 grams of methamphetamine. The sentencing judge, though, found that the government had proved by a preponderance of the…

Dissent to Order by Judge GRABE R

*1136 ORDER

The opinion filed July 15, 2016, and appearing at 828 F.3d 1173 , is AMENDED as reflected in the attached amended opinion. The petition for rehearing en banc is DENIED. No further petitions for rehearing will be considered.