United States v. Daniel Steyskal , 38 F. App'x 343 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1133
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United States of America, *
*
Appellee, *
* On Remand from the
v. * United States Supreme Court
*
*
Daniel Steyskal, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 26, 2001
Filed: April 19, 2001
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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.
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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United States v. Steyskal, 221 F.3d 1345 (8th Cir. 2000) (unpublished), we affirm the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
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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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