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United States Court of Appeals For The Ninth Circuit
United States Court of Appeals For The Ninth Circuit
United States Court of Appeals For The Ninth Circuit
SUMMARY *
Criminal Law
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. VERA 3
COUNSEL
OPINION
A. Vera I
1
For consistency with Vera I, we refer to the defendants by their
first names, Salvador and Armando.
UNITED STATES V. VERA 5
B. Resentencing
3
Proceeding without a sentencing jury meant that the Veras faced
(1) no mandatory minimum sentence, and (2) a smaller statutory
maximum. See 21 U.S.C. § 841(b)(1)(C). But for practical purposes,
there was no difference to the Vera brothers—Salvador still faced a
sixty-year statutory maximum due to a prior conviction, and Armando a
forty-year statutory maximum. See 21 U.S.C. § 861(b).
6 UNITED STATES V. VERA
II. DISCUSSION
4
In a 28(j) letter, the government provided two out-of-circuit cases
suggesting that district courts may rely on complaint affidavits at
sentencing. See United States v. Clark, 538 F.3d 803, 814 (7th Cir. 2008)
(holding that the sentencing court could rely on the complaint to
UNITED STATES V. VERA 13
5
Because the errors here would require remand under either a
preponderance or a clear-and-convincing evidentiary standard, we do not
take up the government’s invitation to reconsider the validity of United
States v. Staten, 466 F.3d 708 (9th Cir. 2006).