                        United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                               _____________

                                  No. 00-1133
                                 _____________

United States of America,              *
                                       *
            Appellee,                  *
                                       * On Remand from the
      v.                               * United States Supreme Court
                                       *
                                       *
Daniel Steyskal,                       *
                                       * [UNPUBLISHED]
            Appellant.                 *
                                  ____________

                            Submitted: March 26, 2001
                               Filed: April 19, 2001
                                ______________

Before:     WOLLMAN, Chief Judge, McMILLIAN, Circuit Judge, and
            PANNER,1 District Judge

PER CURIAM

      The United States Supreme Court vacated our decision in this case and

remanded in light of Apprendi v. New Jersey, 466 U.S. 466, 120 S. Ct. 2348, 147 Led.

2d 435 (2000). Our task is to review Steyskal’s sentence on Count I (marijuana

conspiracy). There is no longer a challenge to Steyskal’s judgment of conviction.


      1
              The Honorable Owen M. Panner, United States District Judge for the
District of Oregon, sitting by designation.
Moreover, the parties do not contest the 60-month sentence imposed on Count II

(anabolic steroid conspiracy). Accordingly, for the reasons stated in our prior opinion,

United States v. Steyskal, 221 F.3d 1345 (8th Cir. 2000) (unpublished), we affirm the

judgment of conviction and the sentence imposed on Count II.

      The Supreme Court in Apprendi held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 120 S. Ct. at 2362-63. The Government concedes that Steyskal’s

sentence of 210 months on Count I violates this directive because the jury was not

instructed to determine whether the offense involved at least 50 kilograms of marijuana.

See 21 U.S.C. § 841(b)(1)(C). The Government further admits that 21 U.S.C. §

841(b)(1)(D), providing for a “term of imprisonment of not more than 5 years,” applies

to defendants, like Steyskal, who are found guilty of a drug offense involving any

quantity of marijuana. In similar situations, we have vacated the sentence and

remanded for resentencing consistent with Apprendi. See United States v. Butler, 238

F.3d 1001, 1005-06 (8th Cir. 2001); United States v. Nicholson, 231 F.3d 445, 453

(8th Cir. 2000), cert. denied, 121 S. Ct. 1244 (2001).

      The Government nevertheless urges us to conclude that the Apprendi error in this

case is harmless. In United States v. Anderson, 236 F.3d 427, 430 (8th Cir. 2001), we


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determined that an Apprendi error was harmless beyond a reasonable doubt when “no

rational jury could have found appellants guilty of the substantive offense, yet at the

same time found that the amount of [drugs] the conspiracy sought to produce was less

than [the amount sufficient to support the court’s sentence].” In that case, however, the

quantity of drugs seized by law enforcement officers was undisputed. See Anderson,

236 F.3d at 429.

      Here, Steyskal disputed his association with the conspiracy by attempting at trial

to discredit the testimony of his immunized co-conspirators. The jury was, of course,

entitled to disbelieve some of these witnesses and to credit others. Therefore, we will

affirm Steyskal’s sentence only if we determine that the jury must have found beyond

a reasonable doubt that he conspired to possess more than the requisite 50 kilograms

of marijuana. In other words, the record must show that every single transaction placed

in evidence by the Government exceeded that threshold amount.

      That is not the case here. The Government concedes that much smaller amounts

were seized from Steyskal and his co-conspirators. There was also testimony of sales

of marijuana less than 50 kilograms. We simply cannot conclude beyond a reasonable

doubt that the jury did not find Steyskal guilty of Count I based on this testimony rather

than testimony regarding more substantial amounts of marijuana. Accordingly, we

vacate Steyskal’s sentence on Count I and remand to the district court for resentencing

                                           -3-
on that count consistent with Apprendi. See Butler, 238 F.3d at 1005-06; Nicholson,

231 F.3d at 453.

      We affirm the judgment of conviction and the sentence imposed by the district

court on Count II; we reverse the sentence imposed on Count I and remand for

resentencing.

      A true copy

                Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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