HIGH COURT RULING SWAYS DRUG CASE: JUDGE REJECTS BID FOR TOUGHER SENTENCE

In Sacramento's first such case, the penalty in a major narcotics prosecution has been shaped by a recent U.S. Supreme Court decision that a jury must consider facts that might increase a sentence.

Based on the high court's ruling, U.S. District Judge Garland E. Burrell Jr. rejected the government's request for 30 years and imposed the statutory maximum 20-year sentence on Reveriano Olivera.

The 45-year-old former Modesto resident was found guilty by a jury on June 9 on one count of conspiracy to manufacture methamphetamine and a second count of possession of methamphetamine with the intent to distribute it.

Two others found guilty at the same time are awaiting sentencing. A fourth defendant is a fugitive.

Less than three weeks after those verdicts, the Supreme Court declared, in an appeal from New Jersey known as the Apprendi case, that the jury must determine the truth of factors used to boost sentences beyond the statutory maximum. Those factors include the amount of drugs involved in narcotics prosecutions.

Historically, federal guidelines allowed judges to weigh the evidence and set the amount at the time of sentencing.

Consistent with the law at the time of the trial, the jury in Olivera's case was not asked to find how much methamphetamine he had made, possessed or distributed.

Assistant U.S. Attorney Carolyn Delaney insisted that the evidence presented to the jury tied Olivera to more 500 grams of dope, which makes the statutory maximum life in prison.

She further argued that the guidelines empower Burrell to sentence Olivera to 20 years on the conspiracy and 10 consecutive years on the possession.

The fact that the jury did not decide drug quantity fits the case law definition of "harmless error," Delaney told the judge, because of the strong evidence developed on amount at trial and the failure of Olivera's lawyer to ask that the matter be submitted to the panel.

She asked Burrell, who presided at the trial, to make a formal finding that the amount for which Olivera was convicted exceed 500 grams.

He declined, however, citing Apprendi and a marijuana case decided Monday by the 9th U.S. Circuit Court of Appeals, in which a three-judge panel relied on Apprendi to overturn a Humboldt County man's sentence.

"It is uncertain what amount of drugs the jury would have imputed to (Olivera) arising out of the conspiracy," Burrell found. "The evidence was not overwhelming enough to overcome that uncertainty." As to the other count, the judge found that "the jury might reasonably have concluded he did not know the quantity he possessed."

That count grew out of a January 1999 stop of a truck driven by Olivera on Interstate 5 in Yolo County. A search turned up approximately 10 pounds of methamphetamine and 3 pounds of a precursor chemical hidden in the spare tire.

Defense attorney J. Tony Serra argued that Olivera was unaware he was transporting methamphetamine. He thought the tire contained only the chemical, Serra said.

"There is no basis to infer the jurors believed he knew the amount," Serra said.

Burrell agreed, noting that while the jurors obviously didn't buy that Olivera was ignorant of the methamphetamine, that doesn't mean they were convinced he knew how much was in the tire.