# United States v. Kayle Nordby > Court of Appeals for the Ninth Circuit · September 11, 2000 · 225 F.3d 1053 URL: https://www.frixlaw.com/law-library/cases/9493410 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Kayle NORDBY, Defendant-Appellant - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** September 11, 2000 - **Citations:** 225 F.3d 1053; 2000 Daily Journal DAR 10005; 2000 Cal. Daily Op. Serv. 7567; 2000 U.S. App. LEXIS 22776; 2000 WL 1277211 - **Precedential status:** Published - **Opinion:** Concurrence by Reinhardt - **Judges:** Canby, Reinhardt, Fernandez - **Cited by:** 341 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by United States v. Calvin Wayne Buckland, 289 F.3d 558 (2002). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9493410 ## How later opinions describe it (automated extraction) - holding that a jury made no finding regarding the specific amount of marijuana where an indictment charged a specific amount and a court instructed the jury that the government need not prove a specific amount of marijuana as long as the government proves beyond a reasonable d… - finding that where defendant admitted to growing some marijuana on his land, and admitted to a past conspiracy to grow marijuana, but offered evidence that he was not responsible for all the marijuana plants found on his land relevant to his current charged offense, failure to… - recognizing that the court “look[s] to the trial record and [the defendant’s] representations on appeal” about what evidence he would have adduced regarding the omitted element - holding that, pursuant to Apprendi, an individual cannot be sentenced above the “prescribed statutory maximum,” which is the maximum punishment to which the defendant is exposed “solely under the facts found by the jury” - holding that Apprendi requires that drug quantity in section 841 cases must be charged in the indictment and proven beyond a reasonable doubt before a jury, and overruling circuit precedent to the contrary ## Opinion text REINHARDT, Circuit Judge, concurring specially: I concur fully in Judge Canby’s opinion for the court. While in this case the more stringent Neder test for harmless error is satisfied and therefore we do not resolve the question whether a less stringent test is applicable, I write separately to explain the nature and basis of the less stringent standard described in the opinion. The less stringent standard does not involve a review of the evidence not considered by the jury in order to try to determine what the jury could have concluded. Rather, it requires invalidation of the sentence simply because the verdict reached by the jury does not support the imposition of a sentence greater than five years. There are two alternative rationales that underlie the less stringent standard and its rejection of the Neder approach. The first rationale is that while in Neder the defendant was sentenced for the crime of which the jury convicted him, here the defendant was not convicted of the crime for which he was sentenced. See Neder v. United States, 527 U.S. 1, 6 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999). That rationale is based on the premise that for a defendant who grows marijuana to be sentenced to more than five years, he must have been convicted of committing the crime specified by §§ 841(a) and 841(b)(1)(A) collectively — cultivating 1000 or more marijuana plants — and not simply of violating § 841(a) or §§ 841(a) and 841(b)(1)(D) — cultivating a detectable amount of marijuana. See United States v. Anderson, 201 F.3d 1145 (9th Cir.2000). The second rationale for applying the less stringent standard is that weighing the evidence that the jury did not consider is improper where the missing element is central to the offense. The Neder opinion makes clear that its scope is limited, but does not tell us the nature of the rule’s boundaries. See Neder, 527 U.S. at 17 n. 2, 119 S.Ct. 1827 ; Id. at 33 , 119 S.Ct. 1827 (Scalia, J. dissenting). The premise of the second rationale is that where the element the jury failed to consider is central to the existence of an offense, the omission of the element falls outside of Neder’s scope. The second rationale would be applicable here because, in cases in which, for sentencing purposes, the particular offense depends entirely on the quantity of drugs, quantity is a central element. *1063 Whichever rationale one employs, the less stringent standard would require a court to conclude that the type of error that occurred here, the failure of the jury to determine the quantity of marijuana attributable to the defendant, cannot be harmless regardless of what the record discloses regarding the amount of marijuana for which the defendant could have been found culpable. Because Nordby’s sentence must be reversed whether we apply the more stringent Neder-style harmless error review or the less stringent standard described above, the opinion for the court does not decide which approach we should use in future cases. Nevertheless, in my view, it is important that the nature and basis of the less stringent approach be explained in greater detail than is required for purposes of the court’s opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9493410. Public record. Not legal advice.