04-7119 -- U.S. v. Morgan -- 11/03/2005

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

SCOTT ERNEST MORGAN,

Defendant - Appellant.

No. 04-7119

(D.C. No. 04-CR-19-W)

(E.D. Okla.)

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 months.

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). Because we are remanding this case for resentencing, we need not address that issue.

REMANDED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

FOOTNOTES
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^*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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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