Chan-Astorga

MEMORANDUM *

Petitioner Ramon Chan-Astorga (“Chan”) appeals his conviction and sentence for conspiracy to distribute marijuana, 21 U.S.C. §§ 841 (a)(1) and 846, possession of marijuana with intent to distribute, 21 U.S.C. § 841 (a)(1), and aiding and abetting, 18 U.S.C. § 2 . He contends that the District Court erred when it applied a firearm enhancement to his sentence and when it failed (1) to dismiss the indictment against him on the ground that Respondent (the “Government”) acted in bad faith by destroying materially exculpatory evidence, (2) to sever his case from his co-defendant’s, (8) to bar certain hearsay evidence related to his co-defendants at trial, (4) to reduce his sentence based upon his minimal role in the crime. He further contends that 21 U.S.C. §§ 841 and 846 are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

We have jurisdiction under 28 U.S.C. § 1291 . For the following reasons, we AFFIRM Chan’s conviction and REMAND for re-sentencing.

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I.

We review de novo whether Chan’s due process rights were violated by the Government’s failure to preserve potentially exculpatory evidence. United…