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United States v. Jauregui

United States Court of Appeals, Ninth Circuit

March 22, 2019

United States of America, Plaintiff-Appellee,
v.
Martin Brian Jauregui, Defendant-Appellant.

          Argued and Submitted July 10, 2018 Pasadena, California

          Appeal from the United States District Court for the Southern District of California D.C. No. 3:16-cr-00673-LAB-1 Larry A. Burns, District Judge, Presiding

          Kimberly S. Trimble (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.

          Mark R. Rehe (argued), Assistant United States Attorney; Robert S. Brewer, United States Attorney; Helen H. Hong, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Nicole Ries Fox, Assistant United States Attorney; Office of the United States Attorney, San Diego, California; for Plaintiff-Appellee.

          Before: Marsha S. Berzon and N. Randy Smith, Circuit Judges, and P. Kevin Castel, [*] District Judge.

         SUMMARY [**]

         Criminal Law

         Vacating a sentence and remanding for resentencing, the panel held that a sentence for conspiracy to import methamphetamine cannot, consistent with the Sixth Amendment's jury trial guarantee, be sustained solely by the defendant's admission that he conspired to import marijuana but that it was "reasonably foreseeable that the controlled substance may be methamphetamine."

         The panel held that the district court erred in imposing a sentence exceeding the statutory maximum for conspiracy to import marijuana based on this admission, and that under plain error review, reversal is warranted.

         Concurring, Judge Berzon wrote separately to emphasize the confusion that United States v. Banuelos, 322 F.3d 700 (9th Cir. 2003), has wrought, and to suggest that this court should reconsider it en banc.

         Dissenting, District Judge Castel wrote that there was no plain error in sentencing the defendant for participation in a conspiracy to import methamphetamine, and that on this record he does not believe the defendant can be sentenced lawfully for the crime of conspiracy to import marijuana, a crime for which he has been neither charged nor convicted.

          OPINION

          BERZON, CIRCUIT JUDGE

         Under federal law, the statutory maximum sentence for conspiracy to import a controlled substance depends on the specific, agreed-upon controlled substance "involv[ed]." 21 U.S.C. §§ 960(b), 963. We consider whether, consistent with the Sixth Amendment's jury trial guarantee, Martin Jauregui's sentence for conspiracy to import methamphetamine can be sustained solely by his admission that he conspired to import marijuana but it was "reasonably foreseeable" that methamphetamine would be imported. We hold that it cannot.

         I

         A

         In January 2016, Jauregui attempted to cross the U.S.-Mexico border into Southern California. He was foiled when border agents discovered packages containing over six kilograms of methamphetamine in his car. Jauregui was arrested and questioned by two FBI agents.

         During his interrogation, Jauregui told the agents he did not know there were drugs in the car, and went on to give the agents the following account: He had previously agreed with a man named Victor to smuggle marijuana into the United States. As the plan progressed, Victor gave Jauregui a car with the drugs loaded inside. At an uncle's urging, however, Jauregui decided not to go through with the marijuana smuggling and returned the car to Victor.

         Later that day, Jauregui, wanting to visit his aunt near San Diego, asked Victor to borrow the car he had just returned. According to Jauregui, Victor told him that the drugs had been removed from the car. Throughout his interrogation, Jauregui repeatedly maintained that, at the time he crossed the border, he was unaware that drugs of any kind were hidden inside the car.

         B

         Jauregui was charged with one count of conspiracy to import methamphetamine, in violation of 21 U.S.C. §§ 952, 960, and 963, and one count of importation of methamphetamine in violation of 21 U.S.C. §§ 952 and 960. He pleaded guilty to the conspiracy count in exchange for the government's dismissal of the importation count.

         At the plea colloquy, Jauregui's attorney at first provided the following factual basis for his plea:

Beginning on a date unknown and continuing up to January 31st, 2016, Mr. Jauregui was in agreement with at least two other persons to commit a crime of importing a schedule I or schedule II controlled substance under federal law. He became a member of the conspiracy knowing of its object to import a controlled substance and intending to help accomplish that object. And it was reasonably foreseeable that the controlled substance may be methamphetamine.

         For clarification, the district court asked Jauregui's attorney, "[W]hat was the point about it being whether he knew it was methamphetamine or some other drug?" The attorney explained that Jauregui "believed he was agreeing to import marijuana, but it was reasonably foreseeable that the substance would be methamphetamine under the Pinkerton case," referring to the Supreme Court's decision in Pinkerton v. United States, 328 U.S. 640 (1946).

         The district court then asked the government:

[D]o you agree with that factual basis on the conspiracy to import methamphetamine? Because he's pleading guilty to count one which is conspiracy to import methamphetamine, and a conspiracy is an agreement to do an illegal act. And if the illegal act is to import methamphetamine, then it's not to import some other prohibited drug. So if that is what he's pleading guilty to, then his factual basis is not adequate to satisfy count one unless the government is modifying the importation of methamphetamine to be a conspiracy to import methamphetamine or some other prohibited drug.
And if that's the case, what guidelines apply, the methamphetamine guidelines or the marijuana guidelines?[1]

         The prosecutor answered that "it's going to be [the government's] position in sentencing that the methamphetamine guidelines apply" and "that he knowingly imported the drugs." The district court pointed out that "unlike an importation charge, a conspiracy charge [requires] a mens rea to do the object of a conspiracy." So, the court explained, "if the object of the conspiracy is to import methamphetamine, then you would have to know it was methamphetamine."

         In response, the prosecutor said, "I think that he has to know that there was a possibility. I think he has to know that it was reasonably foreseeable that it could have been methamphetamine instead of marijuana." Apparently convinced, the district court noted that Jauregui had already "admitted that," and the prosecutor agreed. Thus, "[b]ased on the Pinkerton theory and [Jauregui's] agreement that it was reasonably foreseeable that the drugs . . . he thought he was bringing in could have been methamphetamine," the district court concluded that there was a factual basis for Jauregui's plea.

         C

         A few months later, the district court held a sentencing hearing. In determining whether to apply a "minor role" sentencing reduction, [2] the district court questioned Jauregui's version of events, noting that his story-that he had initially agreed to smuggle drugs across the border but had changed his mind-seemed "farfetched." The prosecutor responded that it had "pushed him very hard on that" but that Jauregui, whom the prosecutor called "very simple, very naïve," nonetheless "kept to his story." The court, however, disbelieved Jauregui's story and rejected Jauregui's request for a minor-role reduction.

         Jauregui's attorney asked the district court to apply the Sentencing Guidelines for marijuana, because "[t]he way that [Jauregui] pleaded was that the agreement was for marijuana, although it was reasonably foreseeable it could be methamphetamine by the time it happened." The district court disagreed and so applied the Guidelines for methamphetamine. The court ultimately sentenced Jauregui to seventy-one months' incarceration. Jauregui did not object to the imposed sentence. This timely appeal followed.

         II

         The Sixth Amendment's jury trial guarantee limits the judiciary's power to sentence criminal defendants. To impose a sentence above a statutory maximum, a court may not rely on any fact (other than a prior conviction) not found by a jury or admitted by the defendant. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); United States v. Guerrero-Jasso, 752 F.3d 1186, 1190 (9th Cir. 2014).[3]

         Jauregui's present challenge to his sentence was not raised before the district court, so we review for plain error. See United States v. Chavez, 611 F.3d 1006, 1009 (9th Cir. 2010) (per curiam); see also Fed. R. Crim. P. 52(b). Under that standard, relief is warranted if (1) there was error, (2) the error was plain, (3) the error affected substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en banc).

         Federal drug crime statutes specify offenses covering all "controlled substances," not certain drug types or quantities. The permissible sentencing ranges, however, vary based on the drug type and quantity involved. See, e.g., 21 U.S.C. §§ 841(b), 960(b); see also United States v. Buckland, 289 F.3d 558, 565-66 (9th Cir. 2002) (en banc). For purposes of Apprendi, because drug type and quantity determine the applicable statutory maximum, those factors must be found by a jury or admitted by the defendant before the defendant can be sentenced to more than the relevant maximum for the generic crime. Buckland, 289 F.3d at 568.

         Here, the generic crime is 21 U.S.C. § 963, conspiracy to import a controlled substance. The penalties for importation and conspiracy to import are the same. Id. The penalties for importing a controlled substance are set forth in 21 U.S.C. § 960(b), which lists the sentencing ranges for various drug types and quantities. Jauregui's indictment did not specify the quantity of drugs, so the relevant statutory penalties turned only on drug type. For an unspecified amount of methamphetamine, the applicable statutory maximum is twenty years. Id. § 960(b)(3); see also United States v. Thomas, 355 F.3d 1191, 1201 (9th Cir. 2004). For an unspecified amount of marijuana, on the other hand, the applicable statutory maximum is five years. See 21 U.S.C. §§ 841(b)(1)(D), 960(b)(4). Where drug type and quantity are not proven, the relevant statutory maximum is one year. See id. §§ 841(b)(3), 960(b)(7); see also United States v. Hunt, 656 F.3d 906, 916 (9th Cir. 2011).

         Applying § 960(b), the district court sentenced Jauregui to seventy-one months of incarceration, less than the statutory maximum for methamphetamine but more than the statutory maximum for marijuana. Whether that sentence is permissible turns on whether, in the ...


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