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Date: Filed /
STATES COURT OF APPEALS
ORDER AND JUDGMENT(*)
Before KELLY, O'BRIEN, and TYMKOVICH, Circuit Judges.(2)
Defendant-Appellant Scott Ernest Morgan appeals from the sentence
imposed upon his conviction, following a guilty plea, of conspiracy to
manufacture and distribute a mixture or substance containing a detectable amount
of methamphetamine in violation of 21 U.S.C. § 841(a)(1). 21 U.S.C. § 846.
Mr. Morgan objected to the presentence report ("PSR") concerning the quantity
of drugs used to enhance his sentence, and contended that the quantity of drugs
should have been proven beyond a reasonable doubt in accordance with Blakely
v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466
(2000). At sentencing, Mr. Morgan urged these objections as well as another
deemed untimely by the district court, and sought a downward departure based
upon medical conditions. Ultimately, the district court overruled the objections,
denied the motion for downward departure, and applied the Sentencing
Guidelines. Mr. Morgan was sentenced to 121 months imprisonment and 36
months of supervised release. Mr. Morgan's guideline range was 121 to 151
On appeal, Mr. Morgan presents two claims. He claims that the district
court erred in sentencing him based upon facts not alleged in the indictment,
facts not admitted in the change of plea, and facts not found by a jury. The
government concedes that Mr. Morgan objected on constitutional grounds to his
sentence before the district court. The government does not contend that the
error is harmless, and concedes that we should remand for resentencing. Aplee.
Br. at 7. Mr. Morgan also argues that the district court erred in rejecting his
untimely argument that contraband located at the scene of the crime was not
reasonably foreseeable as jointly undertaken criminal activity. See U.S.S.G.
§ 1B1.3(a)(1)(B); United States v. Dazey, 403 F.3d 1147, 1176 (2005).
we are remanding this case for resentencing, we need not address that issue.
Entered for the Court
Paul J. Kelly, Jr.
Click footnote number to return to corresponding location in the text.
*. This order and judgment is not binding
precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
2. After examining the briefs and the appellate
record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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