United States v. Pimentel-Lopez

• Decision Date: 15 July 2016
• Docket Number: No. 14-30210,14-30210
• Citation: 859 F.3d 1134
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jesus PIMENTEL–LOPEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

859 F.3d 1134

UNITED STATES of America, Plaintiff–Appellee,

v.Jesus PIMENTEL–LOPEZ, Defendant–Appellant.

No. 14-30210

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 15, 2015 Seattle, Washington

Filed July 15, 2016

Amended June 1, 2017

Timothy M. Bechtold (argued), Bechtold Law Firm, PLLC, Missoula, Montana, for Defendant–Appellant.

Zeno B. Baucus (argued) and Michael S. Lahr, Assistant United States Attorneys; Leif M. Johnson, Acting United States Attorney; United States Attorney's Office, Helena, Montana; for Plaintiff–Appellee.

Before: Alex Kozinski, William A. Fletcher and Raymond C. Fisher, Circuit Judges.

Dissent to Order by Judge Graber

ORDER

The opinion filed July 15, 2016, and appearing at 828 F.3d 1173, is AMENDED as reflected in the attached amended opinion. The petition for rehearing en banc is DENIED . No further petitions for rehearing will be considered.

GRABER, Circuit Judge, with whom TALLMAN, BYBEE, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from denial of rehearing en banc:

I respectfully dissent from the denial of rehearing en banc. The panel held that when a jury finds that the amount of drugs the government has proved, beyond a reasonable doubt, is attributable to a defendant falls within a specified range, the sentencing judge may not find by a preponderance of the evidence that the amount of drugs attributable to the defendant is higher than that range. United States v. Pimentel–Lopez , 828 F.3d 1173, 1176–77 (9th Cir. 2016). That holding is wrong both as a matter of logic and as a matter of Supreme Court law, it has far-reaching consequences for the prosecution of drug crimes in our circuit, and it conflicts with holdings in other circuits. For all those reasons, we should have reheard this case en banc.

I

A jury convicted Defendant Jesus Pimentel–Lopez of possessing methamphetamine, with intent to distribute it, and conspiracy to accomplish the same. The jury found specifically that the government had proved its case beyond a reasonable doubt with respect to less than 50 grams of methamphetamine. The sentencing judge, though, found that the government had proved by a preponderance of the evidence that the quantity of drugs was greater than 50 grams and sentenced Defendant accordingly. The sentence imposed did not exceed the maximum sentence for the quantity of less than 50 grams, which the jury had found; rather, the court imposed the statutory maximum for a quantity of less than 50 grams. Id. at 1175. The panel nonetheless vacated the sentence on the ground that the jury's finding as to drug weight "precluded a contradictory finding by the district judge during sentencing." Id. at 1177. In fact, the district judge's finding as to drug weight did not contradict the jury's finding and was permissible under Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Watts , 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam).

II

The panel's opinion first errs by misconstruing what the jury found. The jury answered the following question on the verdict form:

Having found Jesus Pimentel–Lopez guilty of the charge ... we unanimously find beyond a reasonable doubt the amount of a substance containing a detectable amount of methamphetamine attributable to Jesus Pimentel–Lopez to be:

x Less than 50 grams of a substance containing a detectable amount of methamphetamine.

___ 50 grams or more, but less than 500 grams, of a substance containing a detectable amount of methamphetamine.

___ 500 grams or more of a substance containing a detectable amount of methamphetamine.

Pimentel–Lopez , 828 F.3d at 1175. Again and again, the opinion characterizes the jury's finding as an "affirmative" finding, beyond a reasonable doubt, that the amount of methamphetamine attributable to Defendant's crimes was less than 50 grams. Id. at 1176, 1177. In other words, the panel reads the jury's special verdict to say, "we find that the drug quantity was less than 50 grams, and beyond a reasonable doubt the amount did not exceed 50 grams," rather than to say simply, "we find that the government proved beyond a reasonable doubt that some quantity of drugs was attributable to the defendant and, of these three options, that quantity falls into the ‘less than 50 grams' category."

To be fair, the precise wording of the verdict form, read in isolation, does admit the construction that the panel gave it. But we do not read a verdict form, much less a portion of a verdict form, in isolation, and neither does a jury. A verdict form must be interpreted in light of the jury instructions and in the context of the trial as a whole. United States v. Hartz , 458 F.3d 1011, 1022 n.9 (9th Cir. 2006) ; United States v. Pineda–Doval , 614 F.3d 1019, 1031 (9th Cir. 2010). Here, the context was a drug trial in which the government offered evidence of several drug transactions tied to a conspiracy. In that context, a finding by the jury that the amount of drugs attributable to Defendant was less than x grams, with x being a number smaller than the total quantity of drugs that the government sought to attribute to Defendant at trial, was a finding only that the amount of drugs that the government proved beyond a reasonable doubt to be attributable to Defendant was less than x grams. It was not a finding of any kind about amounts greater than x grams. Under the panel's reading of the verdict form, though, the jury found that the government proved beyond a reasonable doubt that the amount did not exceed x grams—something that the instructions did not ask the jury to find.

An example will further illustrate the illogic of the panel's interpretation. Suppose that the government offered evidence in this case of two drug transactions, each involving 45 grams of a substance containing a detectable amount of methamphetamine. Suppose further that the jury is persuaded beyond a reasonable doubt that one transaction occurred and that the amount was attributable to Defendant, but that the jury is persuaded to a lesser degree as to the second transaction. Under my reading of the verdict form, the jury would, as it did here, check the box for less than 50 grams. But under the panel's analysis, the jury could not check any box because it did not (and in this example it could not) find beyond a reasonable doubt that the amount attributable to Defendant did not exceed 50 grams.

The panel has amended its opinion to include a proposed verdict form that "capture[s] the view that the government is now attributing to the jury." Revised panel op. at 18–19. But the fact that there is some other formulation that might have reflected the jury's factual findings even more clearly says nothing about how the actual verdict form in this case should be interpreted. A verdict form such as the one in this case is best understood to mean that the government proved its case only with respect to some amount of drugs weighing less than 50 grams. See, e.g. , United States v. Young , 609 F.3d 348, 357 (4th Cir. 2010) ("By determining that the evidence presented at trial established that [the defendant's] crimes involved ... less than five kilograms of cocaine, the jury in this case effectively acquitted [the defendant] of involvement with the distribution of more than five kilograms. The district court was free to consider, as it would with any other acquitted conduct, whether the government could establish a higher quantity under a preponderance of the evidence standard.").

III

Given what the jury actually found in this case—as opposed to what the panel erroneously concluded that the jury found—the district judge's drug-weight finding was consistent with the jury's finding. As the panel's opinion acknowledges, at least four other circuits have held that "a jury's special-verdict finding that the quantity of drugs involved in [a] crime is less than a particular amount [does] not preclude [a] judge from finding a greater amount for purposes of sentencing." Pimentel–Lopez , 828 F.3d at 1176. Those cases relied, either explicitly or implicitly, on the rationale of Watts .¹ In Watts , the Supreme Court held that a jury verdict of acquittal "does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." 519 U.S. at 157, 117 S.Ct. 633. Here, the jury was given three ranges: It was asked whether Defendant was responsible for less than 50 grams; 50 to 500 grams; or 500 grams or more of a substance containing a detectable amount of methamphetamine. By marking the smallest option, the jury in effect acquitted Defendant of the greater charges—that is, the greater amounts that the government had sought to prove. But, under Watts , the trial judge was permitted to consider evidence of those greater amounts and make a higher drug-weight finding by a preponderance of the evidence.

The panel's opinion distinguishes Watts and the opinions of our sister circuits by reasoning that the "rationale [of Watts ] is inapplicable where, as here, we have an affirmative finding that the amount in question is less than a particular amount." Pimentel–Lopez , 828 F.3d at 1177. That being so, the panel explains, there can be no "acquittal." Id. But that reasoning is flawed, because it rests on the panel's misreading of the verdict form.

The panel also distinguishes the decisions of our sister circuits by noting that those courts "seem to have assumed that the juries' findings merely acquitted defendants of possessing higher quantities of drugs." Id . In several of those cases, as in this case, the jury found a drug amount attributable to the defendant that was "less than" some value. See, e.g. , United States v. Webb , 545 F.3d 673, 677 (8th Cir. 2008) (stating that "the jury found beyond a reasonable doubt that [the defendants] conspired to distribute between five and fifty grams of cocaine base," but "the district court sentenced...