Peralta-Romero

MEMORANDUM ***

The United States appeals the district court’s order granting Oscar Peralta-Romero’s motion pursuant to 28 U.S.C. § 2255 and the district court’s subsequent resentencing of Peralta-Romero from sixty to forty-six months. We affirm the district court’s order granting Peralta-Romero’s § 2255 motion and its judgment resentencing Peralta-Romero to forty-six months in prison.

*874 I

The government argues that Peralta-Romero’s failure to raise a claim under Apprendi v. New Jersey on direct review proeedurally defaulted the claim. The claim was not proeedurally defaulted. See English v. United States, 42 F.3d 473, 477-478 (9th Cir.1994).

II

We have held that the sentencing range for a defendant found guilty of a crime involving an unspecified amount of marijuana in violation of 21 U.S.C. §§ 841 (a) and 846 is zero to five years pursuant to § 841(b)(1)(D) and that exposure to the imposition of five to forty years under § 841(b)(1)(B) amounts to Apprendi error. United States v. Velasco-Heredia, 319 F.3d 1080, 1085 (9th Cir.2003). The district court noted that Peralta-Romero’s co-defendant was convicted under essentially the same circumstances as PeraltaRomero, except…