Grady

MEMORANDUM ***

I.

In July, 1988, appellant Patrick Grady was convicted following jury trial of conspiracy to distribute cocaine ( 21 U.S.C. §§ 841 (a) and 846), distribution of cocaine ( 21 U.S.C. § 841 (a)) and several related telephone offenses ( 21 U.S.C. § 843 (b)). In September, 1988, he was sentenced to 25 years of imprisonment. In June, 1990, following the Supreme Court’s decision in Mistretta v. United States, 488 U.S. 361 , 109 S.Ct. 647 , 102 L.Ed.2d 714 (1989), he was resentenced under the Sentencing Guidelines to 293 months in prison followed by five years supervised release. He was not convicted of violating 21 U.S.C. § 848 , the continuing criminal enterprise statute. He now argues that he was sentenced in violation of Richardson v. United States, 526 U.S. 813 , 119 S.Ct. 1707 , 143 L.Ed.2d 985 (1999), because the jury was not asked to make a unanimous finding regarding the contested drug quantity that the sentencing court used to increase his sentence.

As appellant concedes, the Richardson holding applies only to those charged with or convicted of 21 U.S.C. § 848 : “[A] jury in a federal criminal case brought under § 848 must unanimously agree not only that the…