and Submitted July 10, 2018 Pasadena, California
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.
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;
Before: Marsha S. Berzon and N. Randy Smith, Circuit Judges,
and P. Kevin Castel, [*] District Judge.
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."
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.
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.
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.
BERZON, CIRCUIT JUDGE
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.
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.
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.
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.
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.
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.
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).
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
And if that's the case, what guidelines apply, the
methamphetamine guidelines or the marijuana
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."
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.
months later, the district court held a sentencing hearing.
In determining whether to apply a "minor role"
sentencing reduction,  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.
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.
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).
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).
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.
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.
§ 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 ...