Memorandum Opinion and Order

A federal jury convicted Mark Henderson of four counts, including counts of conspiring and attempting to commit drug offenses proscribed by 21 U.S.C. § 841.  As has been the typical practice in federal drug prosecutions, the indictment did not charge, nor did the jury find, an amount of drugs attributable to Henderson.  This court concludes that a recent Supreme Court opinion, Apprendi v. New Jersey, 2000 WL 807189 (U.S. June 26, 2000), mandates that in cases in which the government seeks increased penalties, the amount of drugs involved in a violation of section 841 is an element of the offense that must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.  Because the authority to determine that element now rests in the hands of the jury, this court could not sentence Henderson pursuant to an increased statutory penalty range.  The United States Sentencing Guidelines, however, required the court to sentence Henderson to a term of at least 35 years imprisonment.