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Defendant-appellant James Zillgitt appeals from a judgment entered in the United States District Court for the Northern District of New York (Scullin, J.), following a jury trial, convicting him of one count of conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Pursuant to the United States Sentencing Guidelines (the "Guidelines"), the district court set Zillgitt's base offense level at 28 as a result of its finding by a preponderance of the evidence that the drug conspiracy involved a total of 3.25 kilograms of cocaine. This base offense level, coupled with Zillgitt's Criminal History Category III, yielded a sentencing range of 97 to 121 months' imprisonment. The district court sentenced Zillgitt to 109 months' imprisonment.

Zillgitt argues on appeal that his sentence is unconstitutional on two grounds. First, he claims that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that "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." Id. at 490, 120 S.Ct. 2348. Zillgitt contends that because neither the type nor the quantity of the controlled substances charged in Count One of the indictment were submitted to the jury and proved beyond a reasonable doubt, his sentence is unconstitutional under Apprendi.

Second, Zillgitt argues that his sentence is unconstitutional under United States v. Barnes, 158 F.3d 662 (2d Cir.1998), in which we held that where a jury returns a general guilty verdict on a single count of conspiracy involving multiple controlled substances, the district court must sentence the defendant as if convicted of a conspiracy involving only the substance that carries the lowest statutory sentencing range. Zillgitt contends, following Barnes, that the district court was required to sentence him under 21 U.S.C. § 841(b)(1)(D), the penalty provision applicable to a conspiracy to distribute an indeterminate amount of marijuana, which carries a maximum term of imprisonment of five years, or sixty months. We agree that Zillgitt's sentence was unconstitutional under Barnes and the cases upon which Barnes relied.

Because Zillgitt did not raise these arguments either at trial or at sentencing, we review his claims for plain error. See Fed.R.Civ.P. 52(b); United States v. Guevara, 277 F.3d 111, 123 (2d Cir.2001); United States v. Thomas, 274 F.3d 655, 666 (2d Cir.2001) (en banc). Applying plain error review, we hold that the district court committed error, that the error was plain, that the error affected Zillgitt's substantial rights, and that the error seriously affected the fairness and the public reputation of the judicial proceedings.

For the reasons that follow, we withhold judgment on Zillgitt's conviction for thirty days. If the government consents to a resentencing under 21 U.S.C. § 841(b)(1)(D), the statutory provision applicable here to a marijuana-only conspiracy, we will affirm the conviction. If the government does not consent, we will vacate the conviction and remand for a new trial. Should the government elect to retry Zillgitt, any sentence imposed for the crimes charged under Count One of the original indictment will be reduced by the amount of time he has already served. Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).


286 F.3d 128 (2002)

UNITED STATES of America, Appellee, v. James ZILLGITT, Defendant-Appellant.

Docket No. 00-1421.

United States Court of Appeals, Second Circuit.

Argued November 6, 2001.Decided April 4, 2002.New York Law School location: File #3015, Box #144