U.S. v. Banuelos

• Decision Date: 10 March 2003
• Docket Number: No. 01-50051.,01-50051.
• Citation: 322 F.3d 700
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Manuel BANUELOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

322 F.3d 700

UNITED STATES of America, Plaintiff-Appellee, v. James Manuel BANUELOS, Defendant-Appellant.

No. 01-50051.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2002.

Filed March 10, 2003.

COPYRIGHT MATERIAL OMITTED

Janice M. Deaton, San Diego, CA, for the defendant-appellant.

Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Todd W. Robinson, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CR-99-02071-IEG.

Before PREGERSON, FISHER and TALLMAN, Circuit Judges.

Opinion by Judge FISHER; Dissent by Judge TALLMAN.

OPINION

FISHER, Circuit Judge.

We are once again confronted with an Apprendi-based challenge to a sentence for a federal drug offense. James Manuel Banuelos contends that the district court erred in sentencing him to 120 months in prison for conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1). We agree. It is well settled that, in determining for purposes of sentencing the quantity of drugs for which a conspirator will be held responsible, the district court is required to determine the quantity of drugs the conspirator "reasonably foresaw or which fell within `the scope' of his particular agreement with the conspirators." United States v. Petty, 992 F.2d 887, 890 (9th Cir.1993). We now hold that, where such a finding exposes the conspirator to a higher statutory maximum than he otherwise would face, the finding must be made by the jury, or, in the case of a guilty plea, by the court beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

FACTUAL & PROCEDURAL BACKGROUND

Banuelos was arrested for his involvement with Xclusive Auto Center, a San Diego business that served as a narcotics brokerage house — a hub for drug wholesalers to deliver their products to transportation and distribution organizations. Banuelos acted as a broker who arranged the delivery of shipments of marijuana between wholesale distributors and transportation and distribution organizations.

The government charged Banuelos and 25 other individuals in a multi-count indictment. He ultimately pled guilty to Count Two, which charged him with conspiracy to distribute controlled substances, including marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Count Two named Banuelos in several overt acts, including the delivery of 100 pounds of marijuana on one occasion, the delivery of 75 pounds of marijuana on another day and the receipt of 300 pounds of marijuana.

At the change of plea hearing, Banuelos agreed that "the government could prove in this case that the total amount of marijuana that is attributable to this conspiracy is 1000 kilograms," but he disputed that the 1000 kilograms should be personally attributed to him for purposes of sentencing. The district court informed Banuelos that the mandatory minimum would be 10 years and that the maximum would be life imprisonment. The court explained that those would be the minimum and maximum sentences "if [the court found] that

[Banuelos was] responsible for the entire amount of drugs that was distributed by the conspirators in this case."

The court identified two issues to be resolved at the sentencing hearing:

Okay. So we are proceeding along the marijuana — deciding how much marijuana the conspiracy was involved in distributing, and then how much of that you should be liable for. So those are two different issues.

Banuelos did not dispute that the conspiracy distributed more than 1000 kilograms of marijuana, and he confirmed that he was waiving his right to have a jury decide that issue. Banuelos did not, however, explicitly waive his right to a jury determination of drug quantity attributable to him.¹ He continued to dispute that he should be held liable for the entire quantity of drugs distributed by the conspiracy, and he maintained that the district court was required to make the finding of drug quantity attributable to him beyond a reasonable doubt. The court disagreed and instead found by clear and convincing evidence that Banuelos was "personally responsible for at least 1000 kilograms of marijuana" and that the quantity distributed by the conspiracy was reasonably foreseeable to him. Based on those findings, the court sentenced Banuelos pursuant to § 841(b)(1)(A), which imposes a mandatory minimum of 10 years in prison and a maximum sentence of life imprisonment for offenses "involving ... 1000 kilograms or more of a mixture or substance containing a detectable amount of marijuana." The court sentenced Banuelos to 120 months in prison and five years of supervised release. Had the district court sentenced Banuelos for conspiracy to distribute an unspecified quantity of marijuana, it would have looked to § 841(b)(1)(D), which provides for a maximum sentence of five years in prison and no mandatory minimum.

On appeal, Banuelos claims that the district court employed the wrong burden of proof to determine the quantity of drugs for which he should be held responsible.² We reverse and remand for resentencing.

STANDARD OF REVIEW

Whether the district court applied the correct burden of proof in attributing drug quantity to Banuelos and whether the district court properly applied Apprendi are questions of law that we review de novo. United States v. Gill, 280 F.3d 923, 930 (9th Cir.2002).

ANALYSIS

I.

In sentencing a defendant convicted of conspiracy to distribute a controlled substance, a district court may not automatically count as relevant conduct the entire quantity of drugs distributed by the conspiracy. United States v. Garcia-Sanchez, 189 F.3d 1143, 1147 (9th Cir.1999). Rather, the court must find the quantity of drugs that either (1) fell within the scope of the defendant's agreement with his coconspirators or (2) was reasonably foreseeable to the defendant. United States v. Gutierrez-Hernandez, 94 F.3d 582, 585(9th Cir.1996); Petty, 992 F.2d at 890. This rule is well-settled as a matter of sentencing under the Guidelines, but we have also applied it to sentencing under the statute of offense. United States v. Becerra, 992 F.2d 960, 966-67 & n. 2 (9th Cir.1993) (holding that court may not impose statutory mandatory minimum without finding that "a particular defendant had some connection with the larger amount on which the sentencing is based or that he could reasonably foresee that such an amount would be involved in the transactions of which he was guilty"); see also United States v. Mesa-Farias, 53 F.3d 258, 260 (9th Cir.1995) (describing Becerra as requiring that "sentencing for conspiracy be the same under § 841(b) as under the Sentencing Guidelines"). Thus, in order to sentence Banuelos pursuant to § 841(b)(1)(A) — or any penalty provision tied to a particular type or quantity of drug — the district court was required to find not only that the conspiracy distributed a particular type and quantity of drugs, but also that the type and quantity were either within the scope of Banuelos' agreement with his coconspirators or that the type and quantity were reasonably foreseeable to Banuelos.

Banuelos does not dispute that the district court conducted the proper substantive inquiry here, and the record reflects that the district court considered both whether Banuelos himself distributed more than 1000 kilograms of marijuana and whether that amount was reasonably foreseeable. Rather, Banuelos' challenge, which we find meritorious, is based on the district court's choice as to the proper burden of proof.

Apprendi requires the government to prove beyond a reasonable doubt any fact, other than a prior conviction, that exposes the defendant to a greater punishment than that authorized by the guilty verdict or plea. Apprendi, 530 U.S. at 489, 494, 120 S.Ct. 2348. Where a defendant claims the district court violated Apprendi, we first determine the statutory maximum punishment authorized by the guilty verdict or plea. If the conviction follows a jury trial, we scrutinize the jury verdict and ascertain the explicit and implicit findings made by the jury. In the case of a guilty plea, the defendant admits guilt beyond a reasonable doubt and it is necessary to examine the substance of the plea to determine the facts to which the defendant has admitted. Here, Banuelos pled guilty to conspiracy to distribute an unspecified amount of marijuana. This crime carries a statutory maximum penalty of five years in prison and at least two years of supervised release. 21 U.S.C. § 841(b)(1)(D).

The next step in assessing a claim of Apprendi error is to determine whether the court made any findings that exposed the defendant to a greater statutory maximum punishment than that authorized by the plea. Here, the district court made two relevant findings, only one beyond a reasonable doubt. On the basis of Banuelos' own admission, the district court found beyond a reasonable doubt that the conspiracy distributed more than 1000 kilograms of marijuana. However, the district court employed a clear and convincing standard of proof in determining "the quantity of drugs that[Banuelos] reasonably foresaw would be distributed or that fell within the scope of his own agreement with his co-conspirators." Becerra, 992 F.2d at 966. On the basis of those findings, the court sentenced Banuelos pursuant to § 841(b)(1)(A), which carries a maximum sentence of life in prison. Because the district court's findings exposed Banuelos to a higher statutory maximum than he would otherwise face (five years), the court's determination of drug quantity attributable to Banuelos by clear and convincing evidence violated Apprendi.³ See United States v. Velasco-Heredia, 319 F.3d 1080, 2003 WL 152767 at *5 (9th Cir.2003) (holding that Ap...