02-1411, 02-1607 & 02-3641 U.S. v. Messino

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“Clem was indicted and convicted prior to the Supreme Court’s decision in Apprendi. The indictment did not charge any specific amount of cocaine nor did the jury make any findings as to amount of drugs. The district court found that such omissions would not constitute harmless error. After the court made its own findings as to drug amounts, it sentenced Clem to the statutory maximum, as defined and discussed in Apprendi. However, the guidelines mandated a higher sentence than that allowed by Apprendi because of the amount of cocaine that the district court found to be involved in the conspiracy. The judge then imposed partially consecutive sentences on the conspiracy charge and the money laundering charge to reach the total guideline sentence.

“As Clem’s jury found no specific amount of drugs, but he was sentenced for over fifty kilograms, his sentence violates the rule announced in Blakely and Booker. Because we find that the court erred in sentencing Clem based on its own factual findings, we vacate the conspiracy sentence and the consecutive sentence imposed as a result of those findings. We likewise vacate the enhancements imposed as a result of the judge’s findings of fact.”

Affirmed in part, and Vacated and Remanded in part.

Appeals from the United States District Court for the Northern District of Illinois, Coar, J., Bauer, J.