                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-18-2005

USA v. Ramirez-Elias
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3724




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Recommended Citation
"USA v. Ramirez-Elias" (2005). 2005 Decisions. Paper 1348.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1348


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                                                   NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                     Nos. 03-3724/3725


                UNITED STATES OF AMERICA

                              v.

                ADRIAN RAMIREZ-ELIAS,

                               Appellant (No. 03-3724)


                 UNITED STATES OF AMERICA

                              v.

                MANUEL RAMIREZ-MEZA,

                                   Appellant (No. 03-3725)




ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
       THE EASTERN DISTRICT OF PENNSYLVANIA

       (Dist Court Nos. 02-CR-173-06 and 02-CR-173-04)
         District Court Judge: Hon. Bruce W. Kaufman


          Submitted Under Third Circuit LAR 34.1(a)
                     September 15, 2004

     Before: ALITO, AMBRO, and FISHER, Circuit Judges.
                             (Opinion Filed: April 18, 2005)




                               OPINION OF THE COURT




PER CURIAM:

       This is a direct appeal in a criminal case. Adrian Ramirez-Elias pled guilty to two

counts involving a conspiracy to possess and distribute over 1,000 kilograms of marijuana

and was sentenced to the mandatory minimum sentence of 10 years for each crime.

       Prior to sentencing, Ramirez-Elias argued that the penalty provision of the statute

under which he was to be sentenced, 21 U.S.C. § 841(b)(1)(A), was unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the statute requires a judge

to determine the amount of narcotics in question, whereas Apprendi states a constitutional

requirement that the jury determine this amount. Our opinion in United States v. Kelly,

272 F.3d 622 (3d Cir. 2001),1 has foreclosed this argument in this Circuit. See also

United States v. Pray, 373 F.3d 358, 360 n.1 (3d Cir. 2004); United States v. Chorin, 322

F.3d 274, 282 fn. 4 (3d Cir. 2003). The Supreme Court’s recent decision in United States

v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), does not change this result. See, e.g.,

United States v. Collins, 2005 WL 476912 (4th Cir. Mar. 02, 2005) (reaffirming post-

Booker that § 841 is constitutional under Apprendi).



       1
        We see no conflict between Kelly and United States v. Barbosa, 271 F.3d 438
(3d Cir. 2001), or any other decision of our Court cited by Ramirez-Elias.
       Ramirez-Elias was sentenced pursuant to the United States Sentencing Guidelines.

Having determined that issues with respect to Booker are best determined by the District

Court in the first instance, we vacate the sentence and remand for resentencing in

accordance with that opinion.
