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U.S. v. MAGALLON

Nos. 95-10438, 95-10446, 95-10447 and 96-10007.

113 F.3d 150 (1997)

UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis MAGALLON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert GONZALES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Luis E. ESTRADA-HERNANDEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gerardo DELGADO-GARIBAY, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Decided May 5, 1997.

Attorney(s) appearing for the Case

Joseph F. Walsh, Los Angeles, California, Joseph Wiseman, Petaluma, California, James R. Homola, Fresno, California, Carolyn Phillips, Milrod & Phillips, Fresno, California, for defendants-appellants.

Kathleen A. Servatius, Assistant United States Attorney, Fresno, California, for plaintiff-appellee.

Before: HUG, Chief Judge; THOMPSON and KLEINFELD, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

This case presents a question of first impression in this circuit: does the district court commit plain error in sentencing a defendant for a drug crime involving methamphetamine when the district court sentences the defendant under the Sentencing Guideline formula for D-methamphetamine rather than L-methamphetamine and the government has presented no evidence as to which type of methamphetamine was involved? Our answer is that the...

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