Moreno

MEMORANDUM *

Juan Moreno argues that the district court violated his constitutional right to jury trial under Blakely because his sentence reflected a quantity in excess of that charged in the indictment and admitted in his guilty plea. He also argues for the first time that the court erred in sentencing him for possession of methamphetamine “ice” rather than for the “mixture” to which he pled guilty.

When Moreno pleaded grnlty to possession of more than 50g of methamphetamine, the penalty he faced was fixed at 5 to 40 years in prison. The district court committed no Apprendi error 1 when it considered, along with other evidence, that Moreno was in possession of “ice” and other drugs when fixing Moreno’s sentence under the Guidelines at 100 months.

However, that same determination resulted in constitutional Booker error 3 because it lead to the significant enhancement of Moreno’s sentence under mandatory sentencing guidelines. As the error was unpreserved, a limited Ameline remand is appropriate.

He also argues that sentencing him for the greater quantity determined in the sentencing proceeding amounted to double jeopardy, because it gave the government a second chance,…