U.S. v. Ortiz, No. 02-30098.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtRymer
Citation362 F.3d 1274
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Oscar ORTIZ, Defendant-Appellant.
Docket NumberNo. 02-30098.
Decision Date07 April 2004
362 F.3d 1274
UNITED STATES of America, Plaintiff-Appellee,
v.
Oscar ORTIZ, Defendant-Appellant.
No. 02-30098.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 2, 2004.
Filed April 7, 2004.

Page 1275

Teresa A. Hampton, Hampton & Elliott, Boise, ID, for the defendant-appellant.

Lynne W. Lamprecht (argued) and Kim R. Lindquist, Assistant United States Attorneys, Boise, ID, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, District Judge, Presiding. D.C. No. CR-01-00098-BLW.

Before O'SCANNLAIN, RYMER, and BYBEE, Circuit Judges.

RYMER, Circuit Judge.


We write to clarify the proper standard for determining relevant conduct for jointly undertaken criminal activity under USSG § 1B1.3(a)(1)(B) as amended in 1992: the conduct must be both in furtherance of jointly undertaken activity and reasonably foreseeable. This differs from the standard we previously adopted for determining relevant conduct under the 1990 version of the guidelines — that each conspirator is to be held accountable for conduct that he reasonably foresaw or which fell within the scope of his particular agreement. See United States v. Gutierrez-Hernandez, 94 F.3d 582, 585 (9th Cir. 1996) (applying USSG § 1B1.3, cmt. (n.1) (Nov.1990)). The reason for the difference is that commentary to § 1B1.3 was amended in 1992 to embrace a conjunctive test. USSG App. C, Amendment 439, commentary to § 1B1.3 Application Note 2 (1992). Accordingly, to eliminate confusion, we now hold that for sentencings governed by the revised guidelines which became effective November 1, 1992, district courts must make two findings in order to attribute the conduct of others to a defendant under § 1B1.3(a)(1)(B): that the conduct was in furtherance of jointly undertaken criminal activity, and that it was reasonably foreseeable in connection with that activity.

Oscar Ortiz's sentence was based in part on relevant conduct of a co-conspirator under § 1B1.3(a)(1)(B) of the 2001 Guidelines Manual. He challenges this determination because, in his view, there was no joint activity and the district court incorrectly cited Gutierrez-Hernandez. While we agree that Gutierrez-Hernandez was not controlling, the citation itself was harmless for we are satisfied that the district court found that there was jointly undertaken criminal activity and that a co-conspirator's sale of drugs and use of a firearm were reasonably foreseeable.

As Ortiz's remaining arguments also fail, and we have jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Ortiz ran a drug operation based in Twin Falls, Idaho, that merged with an

Page 1276

organization run by Francisco Ramos in the Boise-Nampa area around November 1999. Ramos made three deliveries of methamphetamine, totaling over thirteen pounds, to an undercover agent after the merger and before he was arrested in 2001. He placed a .40 caliber semiautomatic handgun on the table during one of these encounters. A tip by an associate led to Ortiz, who was indicted with others for conspiracy to distribute methamphetamine, drug possession/ distribution, and misprision of felony, all in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Ortiz was convicted on all three counts on December 13, 2001 following trial to a jury.

At sentencing, the district court adopted the findings of the Presentence Investigation Report (PSR). The PSR described the offense conduct in great detail, including Ortiz's involvement in, and knowledge of, the scope of the merged conspiracy. The court determined that Ortiz was accountable for Ramos's deliveries of over thirteen pounds of methamphetamine to undercover agents and use of a gun in conjunction with drug activities. The court also adjusted Ortiz's offense level upward under USSG § 3B1.1(a) for being an organizer or leader of criminal activity involving at least nine participants. With an offense level of 42 and a criminal history category of II, he was sentenced to 360 months.

Ortiz timely appeals his conviction, claiming that the government improperly vouched for its witnesses, and his sentence.

II

Ortiz argues that the district court misinterpreted USSG § 1B1.3 (2001) by finding that it was reasonably foreseeable that Ramos would sell the thirteen pounds of drugs in the context of the overall conspiracy without also finding that Ortiz and Ramos had an agreement to undertake the sale of these drugs in Nampa. He submits that the court incorrectly cited Gutierrez-Hernandez because Gutierrez-Hernandez relied upon the 1990 version of the guidelines, which allowed for the quantity of drugs attributable to a defendant to be based upon the scope of his particular conspiracy or the quantity of drugs he reasonably foresaw.

The government agrees that the 1992 guidelines clarify § 1B1.3 and its commentary by replacing the disjunctive "or" with the conjunctive "and." However, its position is that the district court's determination accurately reflects the appropriate standard and its application to the facts, regardless of the erroneous citation to Gutierrez-Hernandez.

Section 1B1.3 provides for a defendant's offense level to be determined on the basis of all of his own acts and, in the case of jointly undertaken activity,

all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.

In the version of the guidelines that was before the court in Gutierrez-Hernandez, Application Note 1 to § 1B1.3 explained:

Where it is established that the conduct was neither within the scope of the defendant's agreement, nor was reasonably foreseeable in connection with...

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35 practice notes
  • United States v. Collazo, No. 15-50509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Diciembre 2020
    ...raise his concern that the jury instructions were not in accordance with Ninth Circuit precedent. Relying on United States v. Ortiz , 362 F.3d 1274 (9th Cir. 2004), defense counsel argued that the drug-quantity instruction should be phrased in the conjunctive (reasonably foreseeable to him ......
  • United States v. Collazo, No. 15-50509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Diciembre 2020
    ...605 raise his concern that the jury instructions were not in accordance with Ninth Circuit precedent. Relying on United States v. Ortiz , 362 F.3d 1274 (9th Cir. 2004), defense counsel argued that the drug-quantity instruction should be phrased in the conjunctive (reasonably foreseeable to ......
  • United States v. Perez, No. 13-50014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 11 Junio 2020
    ...in connection with the scope of the defendant[s’] agreement as to the jointly undertaken scheme." See United States v. Ortiz , 362 F.3d 1274, 1275 (9th Cir. 2004) (conduct of a member of a conspiracy must be "both in furtherance of jointly undertaken activity and reasonably foreseeable" for......
  • U.S. v. Navarro-Vargas, No. 02-50663.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 23 Mayo 2005
    ...Cir.2004) (improper vouching by prosecutor for government witness constituted plain error requiring reversal); United States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir.2004). The U.S. attorney is not testifying, but is presenting the testimony of others. The phrase is not vouching for the prose......
  • Request a trial to view additional results
35 cases
  • United States v. Collazo, No. 15-50509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Diciembre 2020
    ...raise his concern that the jury instructions were not in accordance with Ninth Circuit precedent. Relying on United States v. Ortiz , 362 F.3d 1274 (9th Cir. 2004), defense counsel argued that the drug-quantity instruction should be phrased in the conjunctive (reasonably foreseeable to him ......
  • United States v. Collazo, No. 15-50509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Diciembre 2020
    ...605 raise his concern that the jury instructions were not in accordance with Ninth Circuit precedent. Relying on United States v. Ortiz , 362 F.3d 1274 (9th Cir. 2004), defense counsel argued that the drug-quantity instruction should be phrased in the conjunctive (reasonably foreseeable to ......
  • United States v. Perez, No. 13-50014
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 11 Junio 2020
    ...in connection with the scope of the defendant[s’] agreement as to the jointly undertaken scheme." See United States v. Ortiz , 362 F.3d 1274, 1275 (9th Cir. 2004) (conduct of a member of a conspiracy must be "both in furtherance of jointly undertaken activity and reasonably foreseeable" for......
  • U.S. v. Navarro-Vargas, No. 02-50663.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 23 Mayo 2005
    ...Cir.2004) (improper vouching by prosecutor for government witness constituted plain error requiring reversal); United States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir.2004). The U.S. attorney is not testifying, but is presenting the testimony of others. The phrase is not vouching for the prose......
  • Request a trial to view additional results

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