Whether the enhanced-penalty provisions of 21 U.S.C. §§ 841(b) and 851 that require judicial factfinding about a prior conviction to increase the mandatory-minimum sentence are unconstitutional under Alleyne and Apprendi

Questions Presented for Review Petitioner is serving a mandatory, 20-year sentence based upon facts that were not submitted to a jury for proof beyond a reasonable doubt: an enhancement for a prior conviction under the previous version of 21 U.S.C. §§ 841(a)(1) and 851. This petition presents the following questions. 1. The enhanced-penalty provisions of 21 U.S.C. §§ 841(b) and 851 expressly require that the district court, not a jury, make factual findings which increase the mandatory-minimum sentence. Specifically, the district court is directed to determine whether the defendant has suffered a prior conviction and whether that conviction qualifies as a “felony drug offense,” as defined in 21 USS.C. § 802(44). Is this sentencing scheme — which requires judicial factfinding as to the facts about a prior conviction, as opposed to the fact ofa prior conviction, in order to increase the mandatory-minimum sentence — unconstitutional in violation of the principles set forth in Alleyne v. United States and Apprendi v. New Jersey? 2. If the judicial factfinding required by 21 U.S.C. §§ 841(b) and 851 is not deemed unconstitutional under Alleyne and Apprendi, because it falls within the “fact of a prior conviction” exception created in Almendarez-Torres v. United States, should the Court overrule that decision? prefix IN THE SUPREME COURT OF THE UNITED STATES JUAN GARCIA HERRERA, Petitioner, Vv UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Petitioner, Juan Garcia Herrera, respectfully prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit. Opinion Below The Ninth Circuit, in an unpublished memorandum, affirmed Herrera’s conviction and sentence for conspiracy and distribution of methamphetamine.’ The sentence was based on the district court’s finding that Herrera had suffered a : A copy of the memorandum is attached as