Tooby's California Post-Conviction Relief for Immigrants

(A)Right to a Jury Determination.   Due process requires the prosecution to prove beyond a reasonable doubt, and the jury to determine the existence of, a sentencing factor that operates to increase the penalty above the statutory maximum sentence.[182]  This rule, however, only applies where the factual determination increases the maximum penalty beyond the statutory range authorized by the jury's verdict -- it does not apply to factors that increase the statutory minimum sentence or otherwise increase the penalty imposed within the statutory maximum.  Apprendi error may invalidate the sentence as a whole if the maximum was raised by the improperly found factor.

[182] Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Buckland, 259 F.3d 1157 (9th Cir. 2001) (declaring sentencing scheme of 21 U.S.C. § § 841(b)(1)(A) and (B) facially unconstitutional since they permit the judge to find a fact, the quantity of drugs, under the preponderance of the evidence standard, that increases the maximum penalty to which a defendant is exposed).