F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 6 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-5128
                                                    (D.C. No. 99-CR-66-C)
    ARMANDO PADILLA,                                     (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, PORFILIO , Circuit Judge, and        BRORBY , Senior
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
      Appellant Armando Padilla pled guilty to a single count of distribution of

an unspecified amount of methamphetamine. Based on its findings regarding the

quantity of drugs involved, the district court sentenced him to over twenty-four

years’ imprisonment, in excess of the statutory maximum of twenty years

established by 21 U.S.C. § 841(b)(1)(C). Mr. Padilla argues on appeal that his

sentence violates Apprendi v. New Jersey , 

, 490 (2000), which

requires that “any fact that increases a penalty for a crime beyond the prescribed

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

doubt.” The government concedes this error and agrees that Mr. Padilla’s

sentence should be reversed and the case remanded for resentencing.

      Accordingly, the judgment of the United States District Court for the

Northern District of Oklahoma is REVERSED, and the matter is REMANDED

for resentencing.


                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Chief Judge




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