Landivar

MEMORANDUM **

Landivar did not raise his Apprendi objection at the time of sentencing. Therefore, he “must establish an error, that was plain, and that affected his substantial rights.” United States v. Buckland, 289 F.3d 558, 563 (9th Cir.2002) (en banc). Here, it is clear there was error, as the jury was not required to determine drug quantity. In fact, the jury was specifically instructed that the government “need only prove beyond a reasonable doubt that there was a measurable amount of cocaine,” which would have exposed Landivar to a sentence of less than 20 years under 21 U.S.C. § 841 (b)(1)(C). However, the district court determined at sentencing that three kilograms were attributable to Landivar, increasing his statutory exposure beyond twenty years.

Despite this error, Landivar cannot satisfy the third prong of the “plain error” inquiry: that the error affected his “substantial rights.” Id. Landivar admitted at trial that he was responsible for transactions totaling three kilograms of cocaine. This admission meant that, to find Landivar guilty, the jury must have found him guilty of distributing at least three kilograms of cocaine. This amount subjects Landivar to a…