United States of America, Plaintiff-appellee, v. Mark Steven Hitchcock, Defendant-appellant, 298 F.3d 1021 (9th Cir. 2002)

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US Court of Appeals for the Ninth Circuit - 298 F.3d 1021 (9th Cir. 2002) Argued and Submitted May 15, 2001
Submission Withdrawn May 21, 2001
Resubmitted August 23, 2001
Opinion Withdrawn September 26, 2001
Amended Opinion Filed March 21, 2002. *
Second Amendment Filed August 2, 2002

Sarah Courageous, Honolulu, Hawai'i, for the defendant-appellant.

Loretta Sheehan, Assistant U.S. Attorney, Honolulu, Hawai'i, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawai'i; Alan C. Kay, District Court Judge, Presiding. D.C. No. CR-98-00716-ACK.

Before: B. FLETCHER, CANBY and PAEZ, Circuit Judges.


ORDER

The Amended Opinion United States v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002), filed March 21, 2002, is amended as follows:

At 286 F.3d at 1073, amend the last two sentences in the paragraph before the "Conclusion" to read:

"Hitchcock's argument is foreclosed by Harris v. United States, ___ U.S. ___, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002), and our prior precedent. It is now clear that mandatory minimums do not implicate Apprendi. Id."

The mandate shall issue forthwith.

 *

Initially this appeal was submitted following oral argument on May 15, 2001. The panel issued an order withdrawing submission pending the outcome in United States v. Antonakeas, 255 F.3d 714 (9th Cir. 2001). Antonakeas was decided prior to our filing of the original opinion. Subsequent to filing the original opinion on August 23, 2001, we withdrew the opinion on September 26, 2001, pending the en banc opinion in United States v. Buckland, 277 F.3d 1173 (9th Cir. 2002). That opinion was filed January 18, 2002. We now file our amended opinion.