United States v. Michael Torres , 869 F.3d 1089 ( 2017 )


Menu:
  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,          No. 13-50088
    Plaintiff-Appellee,
    D.C. No.
    v.                 2:10-cr-00567-AHM-4
    MICHAEL ANTHONY TORRES,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,          No. 13-50095
    Plaintiff-Appellee,
    D.C. No.
    v.                 2:10-cr-00567-AHM-2
    CESAR MUNOZ GONZALEZ,
    AKA Blanco, AKA Cesar
    Gonzales, AKA Ricardo
    Martines, AKA Ricardo O.
    Martinez, AKA Ricardo
    Martinez-Osorio, AKA Osorio
    Ricardo,
    Defendant-Appellant.
    2             UNITED STATES V. TORRES
    UNITED STATES OF AMERICA,              No. 13-50102
    Plaintiff-Appellee,
    D.C. No.
    v.                    2:10-cr-00567-AHM-1
    RAFAEL MUNOZ GONZALEZ,
    AKA “C”, AKA Cisco, AKA
    Homeboy, AKA Big Homie,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,              No. 13-50107
    Plaintiff-Appellee,
    D.C. No.
    v.                    2:10-cr-00567-AHM-3
    ABRAHAM ALDANA, AKA
    Listo,                                      OPINION
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Alvin Howard Matz, District Judge, Presiding
    Argued and Submitted March 8, 2016
    Submission Vacated September 27, 2016
    Resubmitted September 6, 2017
    Pasadena, California
    Filed September 6, 2017
    UNITED STATES V. TORRES                               3
    Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
    Judges and Frederic Block,* Senior District Judge.
    Opinion by Judge Ikuta;
    Concurrence by Judge Clifton (setting forth the majority
    opinion as to Appellants’ challenge to Jury Instruction 50)
    SUMMARY**
    Criminal Law
    The panel affirmed four defendants’ convictions and
    sentences for racketeering, drug trafficking conspiracy, and
    related offenses involving the Puente-13 street gang.
    The panel held that the district court’s jury instruction for
    determining drug quantities under 21 U.S.C. § 841(b), which
    required the jury to determine drug quantities that were
    reasonably foreseeable to each defendant in connection with
    his criminal activity, was not reversible error, even though the
    jury was not required to find that the drug quantities related
    to violations that were part of a jointly undertaken criminal
    activity. In a separate opinion that states the majority opinion
    as to this issue, Judge Clifton wrote that the reasoning of
    United States v. Banuelos, 
    322 F.3d 700
    (9th Cir. 2003), in
    favor of employing a disjunctive formulation for assigning an
    *
    The Honorable Frederic Block, Senior District Judge for the U.S.
    District Court for the Eastern District of New York, sitting by designation.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    4                UNITED STATES V. TORRES
    individual conspirator’s responsibility for drug quantity, has
    since been undermined. Judge Clifton wrote that en banc
    review will ultimately be necessary to sort out the
    inconsistency in the case law, but that the questions need not
    be resolved in this case because plain error review applies
    here, and any error in the jury instructions did not affect the
    defendants’ substantial rights.
    The panel held that the district court did not err in
    denying defendant Abraham Aldana’s request for a multiple
    conspiracies instruction, where there was no evidence upon
    which the jury could rationally sustain the defense that he was
    a member only of separate conspiracies and not of the Puente-
    13 conspiracy.
    The panel rejected the defendants’ argument that because
    their state convictions overlap temporally with their
    convictions in this case, the state convictions cannot be
    considered “prior” convictions that trigger sentencing
    enhancements under § 841(b). The panel held that because
    the jury verdict necessarily determined that the defendants’
    conspiracy continued past the dates when their state
    convictions became final, the district court did not err in
    relying on the defendants’ prior drug convictions to impose
    the mandatory minimum penalties under § 841(b).
    The panel rejected the defendants’ argument that
    21 U.S.C. §§ 841(b) and 851 violate the Sixth Amendment as
    interpreted in Apprendi v. New Jersey, 
    530 U.S. 466
    (2000),
    and Alleyne v. United States, 
    133 S. Ct. 2151
    (2013). The
    panel explained that by permitting a court to find “the fact of
    a prior conviction,” the Supreme Court in Apprendi
    empowered a court to determine that the conviction was prior
    to the case before the court.
    UNITED STATES V. TORRES                       5
    In the portion of her opinion that constitutes a special
    concurrence in Judge Clifton’s opinion, Judge Ikuta wrote
    that the panel remains bound by Banuelos, and that the
    district court therefore did not err in only requiring the jury to
    determine what quantities of drugs were reasonably
    foreseeable to each defendant in connection with his criminal
    activity.
    COUNSEL
    H. Dean Steward (argued), San Clemente, California, for
    Defendant-Appellant Cesar Munoz Gonzalez.
    Benjamin L. Coleman (argued), Coleman Balogh & Scott
    LLP, San Diego, California, for Defendant-Appellant Rafael
    Munoz Gonzalez.
    Michael J. Treman (argued), Santa Barbara, California, for
    Defendant-Appellant Abraham Aldana.
    Karen L. Landau, Oakland, California, for Defendant-
    Appellant Michael Anthony Torres.
    Mack E. Jenkins (argued) and Jennifer L. Williams, Assistant
    United States Attorneys; Robert E. Dugdale, Chief, Criminal
    Division; United States Attorney’s Office, Los Angeles,
    California; for Plaintiff-Appellee.
    6                   UNITED STATES V. TORRES
    OPINION
    IKUTA, Circuit Judge1:
    Rafael Munoz Gonzalez, Cesar Munoz Gonzalez,
    Abraham Aldana, and Michael Torres appeal their
    convictions and sentences for racketeering, drug trafficking
    conspiracy, and related offenses. We hold that the district
    court’s jury instruction for determining drug quantities under
    21 U.S.C. § 841(b) was not reversible error, even though the
    jury was not required to find that the drug quantities related
    to violations that were part of a jointly undertaken criminal
    activity. Nor did the district court err in denying a
    defendant’s request for an instruction on multiple
    conspiracies where the evidence did not show that the
    defendant was involved only in a separate, unrelated
    conspiracy. We also hold that the district court did not err in
    concluding that the defendants had state convictions that were
    prior to the conviction in this case for purposes of the
    § 841(b) mandatory minimum. We therefore affirm the
    defendants’ convictions and sentences.2
    I
    Founded in 1955 in the city of La Puente in Southern
    California, the Puente-13 street gang is a sophisticated,
    1
    Judge Ikuta’s opinion is the opinion of the majority of the court
    except as to section II.A. That section constitutes Judge Ikuta’s special
    concurrence.
    2
    We reject the defendants’ remaining arguments in a memorandum
    disposition filed concurrently with this opinion. See United States v.
    Torres, — F. App’x — (9th Cir. 2017).
    UNITED STATES V. TORRES                          7
    vertically integrated operation involved in the manufacture,
    distribution, and sale of narcotics. By 2010, the gang had
    about 600 documented members who were organized into a
    number of separate divisions and maintained a large network
    of stash houses. Though the drug enterprise was carried out
    on a large scale, Puente-13’s business model was simple: the
    gang carved out a territorial monopoly on drug distribution,
    then collected the revenues provided by that monopoly. Drug
    dealers within Puente-13’s territory were expected to obtain
    their supply from the gang, and each was required to pay the
    gang a portion of their revenues. Sellers who obtained
    narcotics from other sources, were associated with other
    gangs, or refused to pay “taxes” were attacked or excluded
    from Puente-13’s territory. Puente-13’s business therefore
    relied on its ability to maintain monopoly control over its
    territory, meaning that its efforts to exclude or tax rival gangs
    were as important to its success as actual drug sales.
    Accordingly, Puente-13 used a number of means to enforce
    its territorial monopoly, including robberies, prison violence,
    assaults, kidnappings, murder, attempted murder, and drive-
    by shootings. Puente-13 also worked to protect its operations
    from law enforcement, engaging in routine counter-
    surveillance against law enforcement officers.
    Puente-13 is subordinate to the Mexican Mafia gang, a
    prison-based gang that controls the sureño gangs.3 As a
    subsidiary, Puente-13 remits a portion of revenues from
    illegal activities, especially drug proceeds, to the Mexican
    Mafia. Puente-13 members also act as the Mexican Mafia’s
    agents, serving as street-level enforcers and collecting taxes
    from outsiders who sell drugs within Puente-13 territory.
    3
    According to testimony at trial, a “sureño” is a person who is a
    soldier for the Mexican Mafia.
    8                   UNITED STATES V. TORRES
    Beginning in the early 2000s, the Los Angeles County
    Sheriff’s Department conducted a multi-year investigation of
    Puente-13. That investigation identified defendants Rafael
    Munoz Gonzalez, Cesar Munoz Gonzalez, Abraham Aldana,
    and Michael Torres as key figures in the gang. Following the
    conclusion of the investigation, the government presented its
    evidence to three separate grand juries, which resulted in a
    final eight-count criminal indictment.4
    Before trial, the government filed a sentencing
    information under 21 U.S.C. § 8515 alleging that each of the
    four defendants had prior felony drug convictions subjecting
    them to mandatory minimum sentences. When the
    4
    Counts One, Two, and Seven charged all four defendants. Count
    One charged racketeering conspiracy under 18 U.S.C. § 1962(d); Count
    Two charged substantive racketeering under 18 U.S.C. § 1962(c) based on
    membership in Puente-13; and Count Seven charged conspiracy to
    distribute methamphetamine in violation of 21 U.S.C. § 846. The
    government alleged that the defendants committed 86 overt acts in support
    of their drug conspiracy. Counts three and four were omitted. Count Five
    charged Rafael Munoz Gonzalez and Aldana with a Violent Crime in Aid
    of Racketeering (VICAR), conspiracy to commit assault under 18 U.S.C.
    § 1959(a)(6). Count Six charged Rafael Munoz Gonzalez with a second
    VICAR crime, conspiracy to commit murder under 18 U.S.C.
    § 1959(a)(5). Counts Eight and Nine charged Rafael Munoz Gonzalez,
    Cesar Munoz Gonzalez, and Torres with possession with intent to
    distribute methamphetamine under 21 U.S.C. § 841, and possession of a
    firearm in furtherance of a drug trafficking offense under 18 U.S.C.
    § 924(c), respectively. Count Ten charged Torres with possession of a
    firearm by a convicted felon under 18 U.S.C. § 922(g).
    5
    Section 851 provides that in order for a defendant to receive
    increased punishment based on the defendant’s prior convictions, the
    government must first identify those prior convictions by filing an
    information with the court and serving a copy on the defendant before
    trial. 21 U.S.C. § 851(a)(1).
    UNITED STATES V. TORRES                            9
    government files an § 851 information, defendants may be
    subject to an increased statutory minimum sentence under
    21 U.S.C. § 841, which sets terms of imprisonment based on
    the drug quantities and prior convictions of each defendant.
    21 U.S.C. § 841(b). The first § 851 information alleged that
    Cesar Munoz Gonzalez had two prior drug convictions: a
    1995 conviction for Possession of Cocaine Base for Sale
    under section 11351.5 of the California Health and Safety
    Code, and a 2000 conviction for Possession for Sale of
    Methamphetamine under section 11378 of the California
    Health and Safety Code. It also alleged that Aldana had one
    prior drug conviction, a 2002 conviction for Possession for
    Sale of Methamphetamine under section 11378 of the
    California Health and Safety Code. Finally, the first § 851
    information alleged that Torres had a 1994 conviction for
    Possession of Cocaine under section 11350(a) of the
    California Health and Safety Code. The second § 851
    information addressed Rafael Munoz Gonzalez’s prior
    offenses, alleging that he had a 1989 conviction for
    Possession with Intent to Distribute Crack Cocaine under
    21 U.S.C. § 841(a)(1),6 and a 2000 conviction for Possession
    of a Controlled Substance for Sale under section 11378 of the
    California Health and Safety Code.
    Over the course of a 23-day trial, the government
    presented evidence showing the following. Rafael Munoz
    Gonzalez was the leader of Puente-13, as well as an important
    member of the Mexican Mafia. Rafael Munoz Gonzalez set
    6
    At sentencing, the government instead relied on a 1990 conviction
    for conspiracy to distribute cocaine under 21 U.S.C. § 846. This error
    does not affect our analysis, however, because it was corrected prior to
    sentencing and Rafael Munoz Gonzalez was sentenced on the basis of a
    § 846 predicate offense.
    10               UNITED STATES V. TORRES
    the agenda for Puente-13 even when he was in prison, issuing
    orders to other gang members and receiving revenues from
    drug sales. As leader, he pursued an aggressive expansion
    strategy in order to enlarge the gang’s business by expanding
    its territorial control. To further this strategy, Rafael Munoz
    Gonzalez ordered members to extort money from all drug
    dealers within the gang’s territory. He also ordered gang
    members to purchase their methamphetamine exclusively
    from his brother, Cesar Munoz Gonzalez.
    Cesar Munoz Gonzalez was the nominal leader of Puente-
    13 while Rafael was in prison. Like his brother, Cesar
    Munoz Gonzalez worked to subdue rivals, urging Puente-13
    members to tax all drug dealers within their territory and to
    enforce taxation through extortion, assault, and murder.
    Cesar Munoz Gonzalez’s primary responsibility was
    managing the production and sale of methamphetamine; he
    was known within the gang as a high-quantity
    methamphetamine dealer. In connection with his production
    responsibilities, Cesar Munoz Gonzalez shared a proprietary
    method for producing a superior and more marketable form
    of methamphetamine with a few trusted cohorts. Cesar
    Munoz Gonzalez used a stash house on Fourth Avenue in La
    Puente for production and storage of the product, as well as
    a center for methamphetamine distribution.
    Abraham Aldana was a longtime Puente-13 member and
    one of Rafael Munoz Gonzalez’s top lieutenants. Aldana’s
    involvement in Puente-13 was twofold. With respect to the
    drug production and distribution aspects of the business,
    Aldana personally purchased methamphetamine from a
    Puente-13 dealer and sold methamphetamine within Puente-
    13’s territory. Between 1998 and 2002, Aldana purchased
    methamphetamine five times from Andy Villa, then a Puente
    UNITED STATES V. TORRES                     11
    13 member, and resold it from his own house. In 2008,
    Steven Nunez, another Puente-13 member, sold Aldana
    methamphetamine five times after Aldana was released from
    prison. Aldana, in turn, sold methamphetamine “four or five
    times a week.” In December 2008, a law enforcement search
    of Aldana’s residence uncovered 3.17 grams of
    methamphetamine.
    With respect to other aspects of the business, Aldana
    served as Rafael Munoz Gonzalez’s representative and
    enforcer. Among other acts, Aldana negotiated with the
    Mexican Mafia for additional resources to assist Rafael
    Munoz Gonzalez’s efforts to organize attacks against rival
    gang members both inside and outside of prison. Aldana also
    personally extorted drug payments from rival gang members,
    collected taxes from Puente-13 members, and threatened
    violence if the targets failed to comply. On occasion, Aldana
    took cars from drug dealers in lieu of tax payments.
    Michael Torres was an associate of Puente-13 and was
    involved primarily in transporting and delivering drugs and
    drug proceeds. Torres resided at Cesar Munoz Gonzalez’s
    Fourth Avenue stash house and helped with sales and tax
    collection. While living at the stash house, Torres sold at
    least 30 pounds of methamphetamine and helped manufacture
    methamphetamine on numerous occasions. Torres also stored
    a firearm in his room at the stash house in order to protect the
    gang’s operations.
    At the conclusion of trial, the jury convicted the
    defendants on all counts. The district court then held
    individual sentencing hearings to consider the government’s
    § 851 informations. After determining that Rafael Munoz
    Gonzalez and Cesar Munoz Gonzalez each had two prior drug
    12               UNITED STATES V. TORRES
    offenses as alleged in the § 851 informations, the district
    court sentenced both to the mandatory minimum sentence of
    life imprisonment. The court determined that Aldana had one
    prior drug conviction and was subject to the mandatory
    minimum sentence of 20 years. It sentenced Aldana to
    324 months. Finally, the court determined that Torres was
    subject to the same 20-year mandatory minimum sentence
    because of one prior drug conviction and to an additional
    five-year mandatory minimum sentence because of his
    conviction under 18 U.S.C. § 924. The court sentenced
    Torres to 300 months.
    II
    On appeal, the defendants challenge the jury instructions
    for Counts Seven and Eight and the district court’s
    determination that the defendants were subject to mandatory
    minimum sentences under 21 U.S.C. § 841(b). We have
    jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
    A
    All four defendants challenge Jury Instruction 50, which
    addressed the drug quantity determinations required by
    21 U.S.C. § 841(b). Under § 841, any defendant convicted of
    a drug offense in violation of § 841(a) “shall be sentenced” to
    the penalties set forth in § 841(b). 21 U.S.C. § 841(b).
    Section 841(b)(1)(A) provides that “[i]n the case of a
    violation of [§ 841(a)] involving . . . 50 grams or more of
    methamphetamine, its salts, isomers, and salts of its isomers
    or 500 grams or more of a mixture or substance containing a
    detectable amount of methamphetamine, its salts, isomers, or
    salts of its isomers,” the defendant shall be subject to one of
    several specified mandatory minimum sentences. 21 U.S.C.
    UNITED STATES V. TORRES                        13
    § 841(b)(1)(A).7 The alleged violations at issue were those
    set forth in Count Seven (which alleged that all four
    defendants engaged in a drug trafficking conspiracy in
    violation of 21 U.S.C. § 846), and those set forth in Count
    Eight (which charged Rafael Munoz Gonzalez, Cesar Munoz
    Gonzalez, and Torres with substantive drug trafficking under
    21 U.S.C. § 841). Jury Instruction 50 stated:
    If you find any defendant guilty of Count
    Seven or Eight of the indictment (or both),
    you are then to determine, as to each
    7
    21 U.S.C. § 841(b) states, in pertinent part:
    (b) Penalties
    Except as otherwise provided in [sections not relevant
    here], any person who violates subsection (a) of this
    section [enumerating unlawful drug offenses] shall be
    sentenced as follows: (1)(A) In the case of a violation
    of subsection (a) of this section involving— . . .
    (viii) 50 grams or more of methamphetamine, its salts,
    isomers, and salts of its isomers or 500 grams or more
    of a mixture or substance containing a detectable
    amount of methamphetamine, its salts, isomers, or salts
    of its isomers;
    such person shall be sentenced to a term of
    imprisonment . . . . If any person commits such a
    violation after a prior conviction for a felony drug
    offense has become final, such person shall be
    sentenced to a term of imprisonment which may not be
    less than 20 years and not more than life imprisonment
    . . . . If any person commits a violation of this
    subparagraph . . . after two or more prior convictions
    for a felony drug offense have become final, such
    person shall be sentenced to a mandatory term of life
    imprisonment without release . . . .
    14               UNITED STATES V. TORRES
    defendant, which of the certain weights of
    methamphetamine on the special verdict
    forms the government proved beyond a
    reasonable doubt was reasonably foreseeable
    to each defendant in connection with his
    criminal activity.
    Pursuant to Jury Instruction 50, the jury made a special
    finding that “it was reasonably foreseeable” to each defendant
    “that the overall conspiracy involved the distribution of”
    (i) 50 grams or more of “pure or actual” methamphetamine
    and (ii) 500 grams or more of a mixture or substance
    containing a detectable amount of methamphetamine.
    On appeal, the defendants argue that Jury Instruction 50
    was erroneous because it did not instruct the jury that it had
    to find that the drug quantities were associated with conduct
    that was in furtherance of jointly undertaken criminal activity
    in addition to being reasonably foreseeable to each defendant.
    In making this argument, the defendants rely on United
    States v. Becerra, 
    992 F.2d 960
    (9th Cir. 1993). In Becerra,
    defendants who had been part of a conspiracy to sell drugs
    argued that the district court had erred in calculating the
    quantity of drugs attributable to their conduct and had
    therefore imposed an erroneous sentence. 
    Id. at 966.
    Among
    other things, they argued that “the evidence was insufficient
    to support a finding that each ‘knew or could reasonably
    foresee’” that their co-defendant would negotiate a 25-
    kilogram deal “or that each had agreed to a conspiracy of that
    scope.” 
    Id. In addressing
    this argument, Becerra explained
    that “[u]nder the Guidelines, each conspirator may be
    sentenced only for the quantity of drugs that he reasonably
    foresaw would be distributed or that fell within the scope of
    UNITED STATES V. TORRES                             15
    his own agreement with his co-conspirators.” 
    Id. (emphasis added).8
    Applying this standard, we upheld the sentence of
    one of the defendants because the evidence at trial was
    sufficient for the court to find that the defendant had
    “participated in negotiations for the 25 kilograms or that he
    knew or reasonably should have foreseen that such an amount
    would be negotiated.” 
    Id. at 966–67.
    We reversed the
    sentence of the other defendant because such evidence was
    lacking. 
    Id. at 967.
    In a footnote, Becerra then indicated that
    the same analysis would apply to the determination of drug
    quantities under § 841. 
    Id. at 967
    n.2. Although noting the
    language of § 841(b) referenced violations “involving”
    specified quantities of drugs, Becerra rejected the
    government’s argument that § 841(b) allowed a court “to
    sentence a defendant based on the amount of cocaine
    ‘involved’ in an offense, rather than assessing an individual
    defendant’s level of responsibility” because there was “no
    8
    It appears that Becerra relied on the 1991 version of the Guidelines,
    which was in effect before the Guidelines were amended in November
    
    1992. 992 F.2d at 963
    . The application notes to § 1B1.3 in the 1991
    version provided that “[i]n the case of criminal activity undertaken in
    concert with others,” a defendant can be held accountable for “conduct of
    others” that is “in furtherance of the execution of the jointly-undertaken
    criminal activity” and “was reasonably foreseeable by the defendant.”
    U.S.S.G. § 1B1.3, cmt. n.1 (1991). The application notes further stated
    that “the scope of the jointly-undertaken criminal activity, and hence
    relevant conduct, is not necessarily the same for every participant,” and
    therefore “[w]here it is established that the conduct was neither within the
    scope of the defendant’s agreement, nor was reasonably foreseeable in
    connection with the criminal activity the defendant agreed to jointly
    undertake, such conduct is not included in establishing the defendant’s
    offense level under this guideline.” 
    Id. It is
    unclear why the Sentencing
    Commission imposed an “in furtherance” requirement in the affirmative
    formulation of the standard but then used a “within the scope” requirement
    in the negative formulation.
    16               UNITED STATES V. TORRES
    reason why sentencing under the statutory mandatory
    minimums should differ” from sentencing under the
    Guidelines. 
    Id. Without further
    explanation, we held that the
    government “must show 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.” 
    Id. (emphasis added).
    In United States v. Banuelos, we directly applied the
    § 1B1.3 standard addressed in Becerra to determinations of
    drug quantities under § 841(b). 
    322 F.3d 700
    , 704 (9th Cir.
    2003). Banuelos stated that “in order to sentence [the
    defendant] 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 [the
    defendant’s] agreement with his coconspirators or that the
    type and quantity were reasonably foreseeable to [the
    defendant].” 
    Id. (emphasis added).
    In reaching this conclusion, Banuelos applied the
    disjunctive formulation of § 1B1.3(a)(1)(B) set forth in
    Becerra, even though the Sentencing Commission had
    amended the Guidelines in 1992 and adopted a conjunctive
    approach. Section 1B1.3 of the 1992 version of the
    Guidelines provided that “in the case of a jointly undertaken
    criminal activity . . . all reasonably foreseeable acts and
    omissions of others in furtherance of the jointly undertaken
    criminal activity” would be considered “relevant conduct.”
    U.S.S.G. § 1B1.3(a)(1)(B) (1992). The application notes
    reiterate this language, stating that “[i]n the case of a jointly
    undertaken criminal activity [§ 1B1.3(a)(1)(B)] provides that
    UNITED STATES V. TORRES                           17
    a defendant is accountable for the conduct (acts and
    omissions) of others that was both: (i) in furtherance of the
    jointly undertaken criminal activity; and (ii) reasonably
    foreseeable in connection with that criminal activity.” 
    Id. § 1B1.3
    cmt. n.2. This formulation differed from the one
    considered in Becerra and Banuelos not only because it was
    conjunctive, but also because it required a finding that the
    conduct was “in furtherance of” the jointly undertaken
    criminal activity rather than require a finding that the conduct
    at issue was “within the scope” of the defendant’s agreement
    with his coconspirators.9
    In United States v. Ortiz, we recognized for the first time
    that the Guidelines formulation of § 1B1.3 had changed in
    1992. 
    362 F.3d 1274
    , 1275 (9th Cir. 2004). We explained
    that under the prior version of the Guidelines, the standard for
    determining relevant conduct was disjunctive: “that each
    conspirator is to be held accountable for conduct that he
    reasonably foresaw or which fell within the scope of his
    particular agreement.” 
    Id. Under the
    new Guidelines
    language, we explained, the test was conjunctive, and we
    expressly held that “a district court must find that the conduct
    of others was both jointly undertaken and reasonably
    foreseeable for § 1B1.3(a)(1)(B) as revised in 1992 to apply.”
    
    Id. at 1277.10
    (Ortiz did not consider the distinction between
    9
    The Sentencing Commission again revised § 1B1.3 in 2015, adding
    a “within the scope” requirement. The conduct in question must now be
    reasonably foreseeable, in furtherance of the conspiracy, and “within the
    scope of the jointly undertaken criminal activity.”             U.S.S.G.
    § 1B1.3(a)(1)(B) (2015).
    10
    Despite our conclusion in Ortiz, we subsequently held that it was
    not plain error to use a disjunctive instruction for jointly undertaken
    activities under § 1B1.3 of the Guidelines. See United States v. Reed,
    18                  UNITED STATES V. TORRES
    our “within the scope” requirement and the Guidelines’ new
    “in furtherance of” requirement.) We accordingly applied the
    revised Guidelines standard in considering the defendant’s
    challenge to his sentence and concluded that the district court
    had correctly found that the defendant was responsible for
    specific quantities of drugs “because they were in furtherance
    of the conspiracy in which [the defendant] was involved and
    of which he had knowledge.” 
    Id. The defendants
    argue that we are now compelled to apply
    the conjunctive standard adopted in Ortiz to determine the
    quantities of drugs under § 841(b). The defendants reason
    that Becerra stated that there was “no reason why sentencing
    under the statutory mandatory minimums should differ” from
    the 
    Guidelines, 992 F.2d at 967
    n.2. By this logic, whenever
    the Sentencing Commission revises its standard for
    determining relevant conduct under § 1B1.3, we are bound to
    
    575 F.3d 900
    (9th Cir. 2009). In Reed, we considered the defendant’s
    claim that there was “error in establishing his base offense level under the
    Guidelines,” because “the special verdict form relating to the charged drug
    quantity” required under the Guidelines asked the jury to determine
    whether the drug quantity was “either within the scope of the defendant’s
    agreement with his co-conspirators or . . . was reasonably foreseeable” to
    the defendant. 
    Id. at 927.
    Under the amended Guidelines, the relevant
    conduct for sentencing had to be both “(i) in furtherance of the jointly
    undertaken criminal activity; and (ii) reasonably foreseeable.” 
    Id. (emphasis added).
    Without mentioning Ortiz, we concluded that the
    disjunctive formulation was not plain error for two reasons: First, the
    formulation was consistent with our prior opinion in Banuelos. 
    Id. Second, the
    defendant could not show prejudice because he was already
    subject to a mandatory minimum life sentence under § 841(b)(1)(A)
    regardless of the applicable Guidelines range, and because the defendant
    had “personally received” the requisite drug quantity. 
    Id. at 928.
    Because
    Reed did not address the standard applicable to determining drug
    quantities under § 841(b), it does not affect the analysis here.
    UNITED STATES V. TORRES                     19
    change our interpretation of § 841(b) to conform to the
    Guidelines. According to defendants, Jury Instruction 50
    therefore should have required the jury to determine what
    drug quantity was both “reasonably foreseeable to each
    defendant” and in furtherance of jointly undertaken activity.
    The defendants’ argument fails because neither the
    Sentencing Commission’s 1992 revisions to § 1B1.3 nor our
    interpretation of § 1B1.3 in Ortiz constitutes intervening
    controlling authority that is “clearly irreconcilable” with
    Banuelos. See Miller v. Gammie, 
    335 F.3d 889
    , 900 (9th Cir.
    2003) (en banc). Revisions to the Guidelines do not
    themselves constitute intervening controlling authority,
    because the Guidelines do not affect our interpretation of a
    statute such as § 841. “While in some cases the sentencing
    guidelines may be instructive in interpreting a federal statute,
    nothing in the guidelines requires us to apply guideline
    definitions in construing a federal sentencing statute.” United
    States v. Liquori, 
    5 F.3d 435
    , 438 (9th Cir. 1993) (holding
    that the Guidelines’ definition of consolidated offenses was
    “not applicable” to a statutory minimum sentence imposed
    under § 841). Indeed, Banuelos itself followed Becerra’s
    interpretation of § 841(b) rather than change that
    interpretation to conform to § 1B1.3 as revised in 1992. We
    should follow the same course here. Nor does our statement
    in Becerra that we “see no reason” why sentencing under the
    mandatory minimums in § 841(b) should differ from
    sentencing under the then-mandatory 
    Guidelines, 992 F.2d at 967
    n.2, constitute a holding that our interpretation of
    § 841(b) must change when the Sentencing Commission
    revises its definition of “relevant conduct” under § 1B1.3.
    Rather, this comment merely explained why we rejected the
    government’s argument that it need prove only the amount of
    cocaine “involved” in an offense and not the amount of drugs
    20               UNITED STATES V. TORRES
    for which the defendant was individually responsible. 
    Id. Because there
    has been no intervening controlling authority
    overruling our interpretation of § 841(b) in Banuelos, we are
    bound by Banuelos’s interpretation of § 841(b) as requiring
    the trier of fact to find that the type and quantity of drugs
    “were either within the scope of [the defendant’s] agreement
    with his coconspirators or that the type and quantity were
    reasonably foreseeable to [the 
    defendant].” 322 F.3d at 704
    .
    Although we are bound by our precedent, applying
    Becerra in this context is far from satisfactory, and we should
    consider revisiting this issue en banc. Because Banuelos
    relied on Becerra, and Becerra relied on the Guidelines, the
    rationale underlying the interpretation of § 841(b) in Becerra
    and Banuelos has been undermined. Moreover, Becerra’s
    reasoning is not persuasive. Among other things, we have not
    yet explained how our standard is consistent with the plain
    text of § 841(b), which requires a court to first identify the
    violation of § 841(a) at issue and then determine whether that
    violation was “involving” specified quantities of drugs. To
    the extent we interpret § 841(b) as requiring an analysis of
    when a defendant can be held liable for the conduct of co-
    defendants, we have not provided a reasoned explanation of
    why our general principles for determining co-conspirator
    liability do not apply to drug quantity determinations.
    Generally, liability for the acts of co-conspirators is
    determined by the Pinkerton doctrine, which “makes a
    conspirator criminally liable for the substantive offenses
    committed by a co-conspirator when they are reasonably
    foreseeable and committed in furtherance of the conspiracy.”
    United States v. Long, 
    301 F.3d 1095
    , 1103 (9th Cir. 2002)
    (per curiam). A different standard applies in “establishing
    vicarious liability for acts establishing the crime of
    conspiracy itself,” where “a conspirator who joins a
    UNITED STATES V. TORRES                    21
    preexisting conspiracy is bound by all that has gone on before
    in the conspiracy.” United States v. Garcia, 
    497 F.3d 964
    ,
    968 n.1 (9th Cir. 2007). It is unclear why these standards
    should be set aside in favor of an advisory Sentencing
    Guideline defining “relevant conduct,” a Guidelines term not
    found in § 841(b). Nevertheless, despite these reasons to
    revisit Banuelos, we do “not have the authority to ignore
    circuit court precedent.” Mohamed v. Uber Techs., Inc.,
    
    848 F.3d 1201
    , 1211 (9th Cir. 2016). We are bound by
    Banuelos “unless and until” it is “overruled by a body
    competent to do so.” Hart v. Massanari, 
    266 F.3d 1155
    ,
    1170 (9th Cir. 2001).
    The majority acknowledges that we “should be careful to
    respect our precedent” but then declines to follow precedent
    here because “[t]his is not the ordinary situation.” Majority
    at 34–35 According to the majority, we should not follow our
    precedent here because it is not equivalent to the Guidelines
    approach, and we held “on at least three separate occasions,
    that the same approach should be applied when analyzing
    culpability under § 841(b) as is applied under the
    Guidelines.” Majority at 35. This statement is misleading,
    however, because the cases on which the majority relies,
    Banuelos and United States v. Mesa-Farias, 
    53 F.3d 258
    (9th
    Cir. 1995), merely followed Becerra’s interpretation of
    § 841(b). As noted earlier, supra at 19, Banuelos faithfully
    followed precedent instead of applying the Guidelines
    approach: the then-effective Guidelines required application
    of the conjunctive approach to analyzing culpability, see
    supra at 16–17, but Banuelos applied Becerra’s disjunctive
    approach instead. 
    Banuelos, 322 F.3d at 705
    . And in Mesa-
    Farias, we noted Becerra’s disjunctive test that “the quantity
    of drugs be reasonably foreseeable,” but held that the test was
    22               UNITED STATES V. TORRES
    limited to convictions for conspiracy and did not apply to
    convictions for 
    possession. 53 F.3d at 260
    .
    Rather than follow our precedent, the majority attempts
    to sidestep the issue by conducting a plain error analysis,
    concluding that “even if the jury instructions were erroneous,
    any error by the district court did not affect the defendants’
    substantial rights.” Majority at 37 (emphasis added). But
    this plain error analysis itself is flawed. First, there is no
    colorable basis for holding that the district court erred. We
    have never applied the conjunctive standard to § 841(b). Nor
    have we ever required a finding that the conduct at issue was
    “in furtherance of” jointly undertaken criminal activity, rather
    than “within the scope” of the conspiracy. Instead, we have
    held that the trier of fact must find that the type and quantity
    of drugs were “either within the scope of [the defendant’s]
    agreement with his coconspirators or that the type and
    quantity were reasonably foreseeable to [the defendant].”
    
    Banuelos, 322 F.3d at 704
    (emphasis added). Like us, “[t]he
    district court does not have the authority to ignore circuit
    court precedent” and would have had no basis for applying
    the conjunctive standard to § 841(b). 
    Mohamed, 848 F.3d at 1211
    .
    Second, the majority’s plain error analysis merely adopts
    the Becerra test under a different name. The majority reasons
    that had the jury been instructed to find that the quantity of
    drugs was “in furtherance of a jointly undertaken criminal
    activity” as well as being reasonably foreseeable, the jury
    almost certainly would have found the “in furtherance of”
    element because there was substantial evidence that each
    defendant was involved in the Puente-13 drug conspiracy.
    Majority at 38. As a practical matter, this reasoning means
    that whenever a defendant has been convicted of a conspiracy
    UNITED STATES V. TORRES                      23
    to distribute drugs, and the jury finds the quantity of drugs is
    reasonably foreseeable, it would never be plain error to omit
    the “in furtherance of” instruction. In effect, the majority’s
    plain error analysis makes the “in furtherance” requirement
    superfluous.
    Finally, the majority’s approach is flawed for an
    institutional reason. Because it applies a plain error analysis,
    the majority concludes that it is “not prompted to call for our
    court to revisit the broader issue en banc in the context of this
    case because in the end it would not alter its outcome.”
    Majority at 39. But it is our responsibility as a circuit court
    to clarify confusing or contradictory precedent, particularly
    where the majority’s “plain error” resolution effectively
    deprives the defendants of the benefit of the “in furtherance”
    language to which they would be entitled under the
    conjunctive approach. That is what we did in Ortiz where we
    sought to “eliminate confusion” by clarifying the standard for
    applying the revised § 1B1.3, even though the standard did
    not alter the outcome in that case. 
    Ortiz, 362 F.3d at 1275
    ,
    1277. Or, if the majority believes that this case is controlled
    by contradictory precedents which will ultimately need en
    banc review to sort out, Majority at 36, then under our
    precedent we “must call for en banc review” sua sponte,
    United States v. Hardesty, 
    977 F.2d 1347
    , 1348 (9th Cir.
    1992) (en banc) (per curiam) (quoting Atonio v. Wards Cove
    Packing Co., 
    810 F.2d 1477
    , 1479 (9th Cir. 1987) (en banc)).
    In short, rather than effectively kick the can down the road,
    we should either clarify the law or make a sua sponte call for
    rehearing en banc.
    Because we remain bound by Banuelos, the district court
    did not err in only requiring the jury to determine what
    quantities of drugs were reasonably foreseeable to each
    24               UNITED STATES V. TORRES
    defendant in connection with his criminal activity. This
    instruction satisfied Banuelos’s requirement that the trier of
    fact 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.” 322 F.3d at 704
    .
    B
    Defendant Aldana challenges the jury instructions for
    Count Seven (conspiracy to distribute methamphetamine in
    violation of § 846) on a separate ground: that the district court
    erred because the jury instructions did not allow him to
    present his theory that he was involved in a separate
    conspiracy unconnected to the actions of the other
    defendants. At trial, several defendants (including Aldana)
    asked the district court to include Ninth Circuit Model
    Criminal Jury Instruction 8.22 on “multiple conspiracies,”
    which states:
    You must decide whether the conspiracy
    charged in the indictment existed, and, if it
    did, who at least some of its members were. If
    you find that the conspiracy charged did not
    exist, then you must return a not guilty
    verdict, even though you may find that some
    other conspiracy existed. Similarly, if you
    find that any defendant was not a member of
    the charged conspiracy, then you must find
    that defendant not guilty, even though that
    defendant may have been a member of some
    other conspiracy.
    UNITED STATES V. TORRES                    25
    The district court denied the defendants’ request for this
    instruction at trial. It explained that such an instruction may
    be required “if the defendants were involved only in a minor
    conspiracy unrelated to the overall conspiracy.” In this case,
    however, the court indicated that rather than showing
    individual drug conspiracies, “the evidence has been plentiful
    and consistent that Puente 13 was an enterprise with certain
    specified objectives” including drug dealing, gang welfare or
    maintenance, and gang structure.
    Aldana argues that the district court erred in declining to
    give a multiple conspiracies instruction because based on the
    evidence at trial, a jury could have rationally concluded that
    his drug distribution activities were not part of the Puente-13
    conspiracy described in Count 7, but rather comprised
    separate conspiracies involving different co-conspirators.
    According to Aldana, the government presented evidence that
    Aldana personally took part in only two sets of transactions
    directly involving methamphetamine possession and
    distribution: the 1998–2002 purchases and sales (based on
    Villa’s testimony) and the 2008 purchases and sales (based on
    Nunez’s testimony). See supra at 10–11. Aldana claims that
    the government failed to connect either of these sets of
    transactions with the activities of the other named defendants,
    and therefore failed to show that Aldana had anything other
    than individual agreements with Villa and Nunez.
    Accordingly, Aldana claims, the district court erred in
    denying his request for the § 8.22 multiple conspiracies
    instruction.
    We disagree. “A defendant is entitled to an instruction on
    his theory of the case if the theory is legally cognizable and
    there is evidence upon which the jury could rationally find for
    the defendant.” United States v. Morton, 
    999 F.2d 435
    , 437
    26               UNITED STATES V. TORRES
    (9th Cir. 1993). A trial court need not provide an instruction
    if “the evidence, as described in the defendant’s offer of
    proof, is insufficient as a matter of law to support the
    proffered defense.” United States v. Dorrell, 
    758 F.2d 427
    ,
    430 (9th Cir. 1985). A defendant is entitled to a multiple
    conspiracies instruction “where the indictment charges
    several defendants with one overall conspiracy, but the proof
    at trial indicates that a jury could reasonably conclude that
    some of the defendants were only involved in separate
    conspiracies unrelated to the overall conspiracy charged in
    the indictment.” United States v. Anguiano, 
    873 F.2d 1314
    ,
    1317 (9th Cir. 1989) (emphasis added). Accordingly, Aldana
    would have been entitled to a multiple conspiracies
    instruction if there were evidence from which the jury could
    rationally conclude that Aldana was not involved in the
    conspiracy described in Count 7, but was only involved in
    separate conspiracies unrelated to the Count 7 conspiracy.
    Here, there was no evidence presented at trial from which
    the jury could have rationally concluded that Aldana was only
    involved in a separate conspiracy. Both Nunez and Villa
    were, like Aldana and the other defendants, members of
    Puente-13 and obtained methamphetamine from Puente-13
    suppliers. Further, Aldana’s relationship with Nunez in
    particular extended well beyond the drug deals described at
    trial. Nunez testified that he regularly worked with Aldana
    on behalf of Rafael Munoz Gonzalez and that Aldana took
    over Nunez’s position as chief lieutenant when Aldana got
    out of prison. According to Nunez’s testimony, Nunez and
    Aldana worked together to locate drug dealers who had failed
    to pay taxes and were in hiding. They had six or seven
    confrontations with such dealers, and took their cars in lieu of
    cash payments. Nunez spoke to Aldana in prison multiple
    UNITED STATES V. TORRES                             27
    times regarding Puente-13 business, and Aldana used Nunez
    as a conduit to communicate with Rafael Munoz Gonzalez.
    Even if Nunez and Villa were not involved in all aspects
    of the conspiracy alleged in the indictment, Aldana’s
    interactions with them furthered the Puente-13 conspiracy
    because they contributed to the gang’s efforts to distribute
    drugs and to control drug-related activities within its territory.
    “A single conspiracy may involve several subagreements or
    subgroups of conspirators.” United States v. Bibbero,
    
    749 F.2d 581
    , 587 (9th Cir. 1984); see also United States v.
    Perry, 
    550 F.2d 524
    , 533 (9th Cir. 1977) (“To suggest that
    defendants should be acquitted of the general conspiracy
    charge just because some of them met singly with other
    defendants and conspired with them to carry out the overall
    common distribution plan is a misapplication of the law of
    conspiracy.”). Further, Aldana did not adduce any testimony
    or other evidence at trial that undercut the government’s
    evidence regarding Aldana’s activities in furtherance of
    Puente-13’s objectives.11 Absent such testimony, there is no
    “evidence upon which the jury could rationally sustain the
    defense” that Aldana was a member only of separate
    conspiracies and not of the Puente-13 conspiracy. United
    States v. Jackson, 
    726 F.2d 1466
    , 1468 (9th Cir. 1984) (per
    curiam). Accordingly, the district court did not err by
    denying Aldana’s request for a multiple conspiracies
    instruction.
    11
    On appeal, Aldana does not argue that the Puente-13 conspiracy did
    not exist or that he was not a member of it, and so does not explain how
    he is entitled to the multiple conspiracies instruction that he seeks, which
    allows a jury to find a defendant not guilty if the charged conspiracy did
    not exist or the defendant was not a member.
    28               UNITED STATES V. TORRES
    III
    All four defendants challenge the district court’s
    imposition of mandatory minimum sentences under 21 U.S.C.
    § 841. Section 841(a) makes it unlawful for any person “to
    manufacture, distribute, or dispense, or possess with intent to
    manufacture, distribute, or dispense, a controlled substance.”
    21 U.S.C. § 841(a)(1). Where a violation of § 841(a)
    involved 50 or more grams of methamphetamine or 500 or
    more grams of a substance “containing a detectable amount
    of methamphetamine,” a defendant with a prior conviction for
    a felony drug offense “shall be sentenced to a term of
    imprisonment which may not be less than 20 years,” while a
    defendant with two or more prior convictions for a felony
    drug offense “shall be sentenced to a mandatory term of life
    imprisonment without release.” 
    Id. § 841(b)(1)(A)(viii).
    In this case, all four defendants were convicted under
    21 U.S.C. § 846 of conspiracy to violate § 841(a)(1). Section
    846 provides that “[a]ny person who . . . conspires to commit
    any offense defined in [§ 841] shall be subject to the same
    penalties” as a person who violates § 841(a). Each of the
    defendants was therefore subjected to an enhanced sentence
    under § 841(b)(1)(A)(viii) because of the drug quantity and
    their prior conviction or convictions. The defendants raise
    two challenges to the use of their prior state convictions to
    subject them to mandatory minimum sentences.
    A
    First, the four defendants jointly argue that their prior
    state convictions did not trigger sentencing enhancements
    under § 841(b) because they were not committed “prior” to
    the offense for which they were convicted in this case. The
    UNITED STATES V. TORRES                             29
    defendants point out that some of the conduct alleged in
    Count Seven occurred prior to 2003 and argue that this pre-
    2003 conduct also underlays the state convictions that were
    used to enhance their sentences under § 841(b). Because the
    defendants’ state convictions overlap temporally with their
    convictions in this case, the defendants argue that the state
    convictions cannot be considered “prior” to the offense of
    conviction in this case.
    We disagree. In United States v. Baker, the appellant
    similarly argued that his California state narcotics convictions
    could not be used to enhance his federal sentence under
    § 841(b) because “(1) [his] state convictions were related to
    the charges in the federal trial, and (2) his entire involvement
    in the [federal] methamphetamine conspiracy predated the
    finality of his state convictions.” 
    10 F.3d 1374
    , 1420 (9th
    Cir. 1993), overruled on other grounds by United States v.
    Nordby, 
    225 F.3d 1053
    (9th Cir. 2000). We rejected the
    appellant’s arguments, holding that the fact “the federal and
    state charges derive in part from the same activity does not
    preclude using the state convictions to enhance the federal
    sentence” where “the dates, events, and locations involved in
    the federal trial covered a much broader range of criminal
    conduct than the state convictions.” 
    Id. So long
    as the jury
    concludes “that [the defendant] participated in the conspiracy
    during the entire time period alleged in the indictment” and
    that period “extended beyond the date of the state
    convictions,” the related state conviction may properly be
    used to enhance the defendant’s sentence. 
    Id. at 1421.12
    12
    We reject the defendants’ argument that Baker was overruled by
    Apprendi v. New Jersey, 
    530 U.S. 466
    (2000). Though Apprendi did
    overrule portions of Baker permitting the district court to find drug
    quantities for sentencing purposes, it did not address the use of prior state
    30                  UNITED STATES V. TORRES
    Here, the jury verdict necessarily determined that the
    defendants’ conspiracy continued past the dates when their
    state convictions became final. As established in the § 851
    proceeding, all of the defendants’ prior convictions occurred
    before 2003. In contrast, the indictment alleged that the
    conspiracy continued until “on or about June 2, 2010.”
    Because the jury was required to find that the criminal
    agreement existed “on the dates set forth in the indictment”
    in order to convict on Count Seven, the jury’s guilty verdict
    necessarily established that the conspiracy existed until June
    2010, well past the dates that the defendants’ prior
    convictions became final. The district court therefore did not
    err in relying on the defendants’ prior drug convictions to
    impose mandatory minimum penalties under § 841(b).
    
    Baker, 10 F.3d at 1420
    –21.13
    B
    The defendants next argue that §§ 841(b) and 851 violate
    the Sixth Amendment as interpreted in Apprendi v. New
    Jersey, 
    530 U.S. 466
    (2000), and Alleyne v. United States,
    
    133 S. Ct. 2151
    (2013). In those cases, the Supreme Court
    held that “[o]ther than the fact of a prior conviction, any fact
    that increases the penalty for a crime beyond the prescribed
    convictions to enhance federal sentences. See 
    Nordby, 225 F.3d at 1059
    ,
    overruled on other grounds by United States v. Buckland, 
    289 F.3d 558
    (9th Cir. 2002) (en banc).
    13
    Two of our sister circuits have reached the same conclusion. See
    United States v. Smith, 
    451 F.3d 209
    , 224–25 (4th Cir. 2006) (holding that
    “prior felony drug convictions that fall within the conspiracy period may
    be used to enhance the defendant’s sentence if the conspiracy continued
    after his earlier convictions were final”); see also United States v. Fink,
    
    499 F.3d 81
    , 87–88 (1st Cir. 2007) (same).
    UNITED STATES V. TORRES                   31
    statutory maximum,” 
    Apprendi, 530 U.S. at 490
    , or
    “increases the mandatory minimum,” 
    Alleyne, 133 S. Ct. at 2155
    , must be submitted to a jury and proved beyond a
    reasonable doubt. The district court, however, may find “the
    fact of a prior conviction.” 
    Apprendi, 530 U.S. at 490
    ;
    
    Alleyne, 133 S. Ct. at 2168
    ; see also Almendarez-Torres v.
    United States, 
    523 U.S. 224
    , 226–27 (1998). The defendants
    argue that while a court may find the existence of a
    “conviction,” the determination that the conviction is “prior”
    in time must be made by the jury. Therefore, defendants
    argue, because § 851 permits a judge to determine whether
    the defendant’s “prior conviction for a felony drug offense”
    occurred before the instant offense, it is invalid. We reject
    the defendants’ argument. By permitting a court to find “the
    fact of a prior conviction,” 
    Apprendi, 530 U.S. at 490
    (emphasis added), the Supreme Court empowered a court to
    determine that the conviction was prior to the case before the
    court. United States v. Covian-Sandoval is not to the
    contrary; that case merely held that the district court could
    not find the fact of a final judgment in a case, such as an
    immigration proceeding, that did not give the defendant a
    right to jury trial or proof beyond a reasonable doubt.
    
    462 F.3d 1090
    , 1097 (9th Cir. 2006).
    AFFIRMED.
    32                  UNITED STATES V. TORRES
    CLIFTON, Circuit Judge, with whom Judge Block concurs:1
    Section 841(b) sets forth the penalties to be applied for
    violations of the drug offenses enumerated in § 841(a). The
    penalties differ depending on the drug quantity “involv[ed]”
    in the violation of § 841(a). 21 U.S.C. § 841(b). As the
    portion of her opinion that is Judge Ikuta’s special
    concurrence explains, Op. at 14–16, we first faced the
    question of how to assign individual responsibility for a
    particular drug quantity in United States v. Becerra, 
    992 F.2d 960
    (9th Cir. 1993). In that case, the district court sentenced
    the defendants to the statutory mandatory minimum based on
    the drug quantity associated with their offenses. 
    Id. at 963.
    On appeal, we explained that under the Sentencing
    Guidelines “each conspirator may be sentenced only for the
    quantity of drugs that he reasonably foresaw would be
    distributed or that fell within the scope of his own agreement
    with his co-conspirators.” 
    Id. at 966
    (emphasis added).2 The
    special concurrence refers to this standard as the “disjunctive
    formulation,” and we adopt that terminology as well.
    The court in Becerra applied that same disjunctive
    formulation to quantity determinations under § 841(b),
    “reject[ing] the government’s argument that sentencing under
    1
    This opinion states the opinion of the majority of the court as to the
    defendants’ challenge to Jury Instruction 50. See Op. at 6 n.1.
    2
    As the special concurrence notes, Op. at 15 n.8, the court in Becerra
    appeared to be relying on the language present in the 1991 version of the
    Guidelines, which provided in the application notes to § 1B1.3 that
    defendants should not be held accountable for conduct that “was neither
    within the scope of the defendant’s agreement, nor was reasonably
    foreseeable in connection with the criminal activity the defendant agreed
    to jointly undertake.” U.S.S.G. § 1B1.3 cmt. n.1 (1991).
    UNITED STATES V. TORRES                    33
    the statutory mandatory minimums should differ from the
    Guidelines.” 
    Id. at 967
    n.2. The court stated that it saw “no
    reason why sentencing under the statutory mandatory
    minimums should differ” from sentencing under the
    Guidelines because the statutory minimums “are, in essence,
    part of the Guidelines scheme.” 
    Id. Our subsequent
    cases interpreting Becerra reaffirmed this
    aspect of its holding. In United States v. Mesa-Farias,
    
    53 F.3d 258
    , 260 (9th Cir. 1995), we stated that Becerra
    “required . . . that sentencing for conspiracy be the same
    under § 841(b) as under the Sentencing Guidelines.”
    Similarly, in United States v. Banuelos, 
    322 F.3d 700
    , 704
    (9th Cir. 2003), a case involving a conspiracy to distribute
    marijuana, we referenced the disjunctive formulation applied
    in Becerra and noted that this standard was not only “well-
    settled as a matter of sentencing under the Guidelines” but
    has also been “applied . . . to sentencing under the statute of
    offense.”
    However, the disjunctive formulation was not in fact as
    “well-settled” as the majority in Banuelos suggested. As the
    special concurrence has explained, Op. at 16–17, by the time
    that case was decided, in 2003, the Guidelines had already
    been amended in 1992 to require that defendants be held
    accountable only for the conduct of others that was both “(i)
    in furtherance of the jointly undertaken criminal activity; and
    (ii) reasonably foreseeable in connection with that criminal
    activity.” U.S.S.G. § 1B1.3 cmt. n.2 (1992) (emphasis added).
    We will refer to this test as the “conjunctive formulation.”
    We first explicitly recognized the shift in the Guidelines
    from the disjunctive to the conjunctive formulation in United
    States v. Ortiz, 
    362 F.3d 1274
    (9th Cir. 2004). In that case we
    34                  UNITED STATES V. TORRES
    wrote “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.” 
    Id. at 1275.
    Under the
    new conjunctive formulation, we emphasized, “the conduct
    must be both in furtherance of jointly undertaken activity and
    reasonably foreseeable.” 
    Id. But because
    Ortiz was only a
    Guidelines case, it did not have occasion to determine
    whether the standard applied under § 841(b) should change
    along with the Guidelines standard.
    We face that question directly here. The defendants’
    argument is straightforward. If our holdings in Becerra,
    Mesa-Farias, and Banuelos require that the same standard be
    applied when sentencing for a conspiracy under § 841(b) as
    under the Guidelines, defendants argue, then when Ortiz
    changed the test to be applied under the Guidelines, it also
    changed the test to be applied under § 841(b). That is a strong
    argument.3
    The special concurrence would prefer to apply what it
    identifies as the holding of our precedents, though the logic
    has departed. In Judge Ikuta’s view, “neither the Sentencing
    Commission’s 1992 revisions to § 1B1.3 nor our
    interpretation of § 1B1.3 in Ortiz constitutes intervening
    controlling authority that is ‘clearly irreconcilable’ with
    Banuelos.” Op. at 19 (quoting Miller v. Gammie, 
    335 F.3d 889
    , 900 (9th Cir. 2003) (en banc)). We understand this
    position. Each three-judge panel should be careful to respect
    our precedent, and as the special concurrence correctly notes,
    3
    As the special concurrence points out, Op. at 17 n.9, the language
    of § 1B1.3 was revised yet again in 2015. The current version was not
    applicable at the time of Defendants’ trial, and they do not argue that it
    should have been applied by the district court.
    UNITED STATES V. TORRES                   35
    changes to the Sentencing Guidelines do not ordinarily
    “affect our interpretation of a statute such as § 841.” Op. at
    19.
    This is not the ordinary situation, though. In connection
    with § 841(b), this court has clearly held, on at least three
    separate occasions, that the same approach should be applied
    when analyzing culpability under § 841(b) as is applied under
    the Guidelines. We provided no other reason in Banuelos for
    applying the disjunctive formulation to § 841(b) other than
    that the same test was then applied under the Guidelines. See
    
    Banuelos, 322 F.3d at 704
    . That could, therefore, also be
    identified as the holding of our precedents. Now that the
    disjunctive formulation is no longer applied under the
    Guidelines, the reasoning of Banuelos in favor of the
    disjunctive formulation has been completely undermined.
    In support of her view that Banuelos remains good law,
    Judge Ikuta’s special concurrence highlights that “Banuelos
    itself followed Becerra’s interpretation of § 841(b) rather
    than change that interpretation to conform to § 1B1.3 as
    revised in 1992.” Op. at 19. But this argument seems more a
    rationalization after the fact than a description of the
    reasoning in Banuelos, as the panel in that case did not
    indicate that it was aware of the 1992 change in the
    Guidelines. Indeed, it explicitly referred to the already-
    outdated disjunctive formulation as “well-settled . . . under
    the Guidelines.” 
    Banuelos, 322 F.3d at 704
    . Furthermore, the
    defendant in Banuelos did not “dispute that the district court
    conducted the proper substantive inquiry” in applying the
    disjunctive formulation, as we noted in 
    Ortiz, 362 F.3d at 1277
    (quoting 
    Banuelos, 322 F.3d at 704
    ). The Banuelos
    panel did not have reason to focus its attention on the change
    in the Guidelines approach. That decision should not,
    36               UNITED STATES V. TORRES
    therefore, be understood to endorse a divergence between the
    standard to be applied under § 841(b) and the Guidelines. We
    did not appear to be aware in that decision that there was a
    divergence.
    A similar lack of awareness appears to have infected our
    decision in United States v. Reed, 
    575 F.3d 900
    (9th Cir.
    2009). In that case we held that it was not plain error to make
    use of the disjunctive formulation in establishing a
    defendant’s base offense level under the Guidelines, in spite
    of the contrary language in the Guidelines themselves. Our
    decision in Reed did not cite to our holding in Ortiz that the
    conjunctive formulation was required under the Guidelines,
    however. Instead, it held that the use of the disjunctive
    approach was not plain error because it was “consistent with
    our prior statements of the law relating to sentencing under
    the statutory mandatory minimum,” citing to Banuelos. 
    Reed, 575 F.3d at 927
    . In so doing, it appeared to endorse the result
    that the standard to be applied under § 841(b) differs from the
    applicable Guidelines standard, regardless of our court’s
    multiple statements, including in Banuelos itself, that they
    should be the same.
    Ultimately, en banc review will likely be necessary to sort
    the whole mess out. As the special concurrence points out,
    Op. at 20–21, there are other reasons to revisit some of the
    issues raised in Becerra and Banuelos. Even if we decide to
    maintain the result of Banuelos, that the disjunctive
    formulation should be applied to sentencing under § 841(b),
    we would have an opportunity to give reasoning for that
    result that makes more sense than our current undermined
    logic.
    UNITED STATES V. TORRES                              37
    We do not have to resolve those questions to reach a
    result in this case, however. There is another basis on which
    we can and do hold that the convictions are affirmed on this
    issue. Because the defendants did not object to Jury
    Instruction 50 on the basis they raise here, the plain error
    standard of review applies. United States v. Ameline,
    
    409 F.3d 1073
    , 1078 (9th Cir. 2005) (en banc).4 Under that
    standard, relief is warranted only in the presence of “(1) error,
    (2) that is plain, and (3) that affects substantial rights.” 
    Id. (quoting United
    States v. Cotton, 
    535 U.S. 625
    , 631 (2002)).
    “If these three conditions of the plain error test are met, an
    appellate court may exercise its discretion to notice a
    forfeited error that (4) ‘seriously affects the fairness,
    integrity, or public reputation of judicial proceedings.’” 
    Id. (quoting Cotton,
    535 U.S. at 631).
    In this case, even if the jury instructions were erroneous,
    any error by the district court did not affect the defendants’
    substantial rights. In order to satisfy this prong of the test,
    defendants must “establish ‘that the probability of a different
    result is sufficient to undermine confidence in the outcome of
    4
    Defendants argue that review should be de novo because they did in
    fact object to the content of Jury Instruction 50. During deliberations, the
    jury sent a note to the district judge asking about the definition of the term
    “reasonably foreseeable” in the jury instructions. The defendants objected
    to the definition that was ultimately provided to the jury. This objection
    was not enough to preserve the issue of whether the district court should
    have used the conjunctive formulation. Defendants solely contested the
    definition of “reasonably foreseeable” and did not argue to the district
    court that the jury was also required to find that the drug quantity was
    associated with conduct undertaken “in furtherance of the jointly
    undertaken criminal activity.” Thus, their objection was not “specific
    enough to ‘bring into focus the precise nature of the alleged error.’”
    United States v. Pineda-Doval, 
    614 F.3d 1019
    , 1026 (9th Cir. 2010)
    (quoting Palmer v. Hoffman, 
    318 U.S. 109
    , 119 (1943)).
    38               UNITED STATES V. TORRES
    the proceeding.’” 
    Id. (quoting United
    States v. Dominguez
    Benitez, 
    542 U.S. 74
    , 83 (2004)). Defendants have not met
    that burden here. Had the jury been correctly instructed that
    it was required to find that the drug quantities at issue were
    associated with conduct “in furtherance of the jointly
    undertaken criminal activity,” it seems highly unlikely that a
    different result would have been reached.
    Jury Instruction 50 pertained to the specific drug quantity
    associated with the conspiracy to distribute
    methamphetamine alleged in Count Seven. The government
    presented substantial evidence that each of the four
    defendants was personally involved in this drug distribution
    conspiracy. Rafael Munoz Gonzalez was in charge of Puente-
    13 and its drug distribution activities. Cesar Munoz Gonzalez
    managed drug production and sales. Aldana assisted in
    extorting drug payments from rival gangs and collecting
    “taxes” associated with drug distribution activities. Torres
    played a role in both transporting and selling the drugs. Based
    on this evidence, it is hard to see how a jury could find that
    the quantity of drugs at issue was not distributed by the gang
    “in furtherance of the jointly undertaken criminal activity.”
    Drug dealing was not something that happened on the
    sidelines – it was the primary object of the conspiracy of
    which all defendants were members.
    An additional factor demonstrating the lack of prejudice
    here is that the jury found the defendants individually
    responsible for conspiring to distribute the same quantity of
    drugs at issue in Count Seven as part of racketeering activity
    charged elsewhere in the indictment. With respect to the
    substantive racketeering offenses charged in Count Two, the
    jury found that each of the four defendants “committed a
    pattern of racketeering activity” that included conspiring to
    UNITED STATES V. TORRES                     39
    distribute at least 50 grams of pure methamphetamine or
    500 grams of a mixture or substance containing a detectable
    amount of methamphetamine. This conclusion would be hard
    to square with a jury finding that this quantity of drugs was
    not distributed in furtherance of a jointly undertaken criminal
    conspiracy.
    Because relief is not warranted under the plain error
    standard of review, we affirm the defendants’ sentences. We
    are not prompted to call for our court to revisit the broader
    issue en banc in the context of this case because in the end it
    would not alter its outcome. See Go v. Holder, 
    744 F.3d 604
    ,
    614 (9th Cir. 2014) (Wallace, J., specially concurring) (“[W]e
    have also held that even where the orderly development of
    our case law might benefit from an en banc review, it is not
    necessary to engage in such review if a particular case does
    not compel us to do so. Here, . . . because we arrive at the
    same result regardless of the level of deference provided to
    the [government’s] interpretation of [the regulation], this case
    does not require us to call for en banc review[.]” (citation and
    internal quotation marks omitted)); Vasquez v. Astrue,
    
    572 F.3d 586
    , 593 n.5 (9th Cir. 2009) (declining to call case
    en banc to resolve intra-circuit conflict when “[the] case does
    not require” it, even though “orderly development of the
    Circuit’s law in [the] area might benefit from an en banc
    review”); United States v. Frank, 
    956 F.2d 872
    , 879 (9th Cir.
    1992) (“We do not attempt to resolve [the intra-circuit]
    conflict in this matter because we conclude that the district
    court’s ruling would not be erroneous under either
    standard.”).
    We remain concerned, though, about the state of our
    caselaw. As it stands, our precedent either is in conflict or
    calls for us to apply the disjunctive formulation to sentencing
    40              UNITED STATES V. TORRES
    under § 841(b) and the conjunctive formulation to sentencing
    under the Guidelines, even though we adopted the disjunctive
    formulation under § 841(b) in the first place to make the two
    approaches identical. That inconsistency cannot stand. In a
    case where it matters, it should be addressed en banc.
    

Document Info

Docket Number: 13-50088

Citation Numbers: 869 F.3d 1089

Filed Date: 9/6/2017

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (34)

United States v. Fink , 499 F.3d 81 ( 2007 )

United States v. Eric Bernard Smith, A/K/A E, A/K/A Pac-Man,... , 451 F.3d 209 ( 2006 )

United States v. Alfred Arnold Ameline , 409 F.3d 1073 ( 2005 )

United States v. Terrance Frank , 956 F.2d 872 ( 1992 )

United States v. Jude Somerset Hardesty , 977 F.2d 1347 ( 1992 )

United States v. Cecil Lovell Jackson , 726 F.2d 1466 ( 1984 )

United States v. Oscar Ortiz , 362 F.3d 1274 ( 2004 )

United States v. Walter Ward Dorrell, III , 758 F.2d 427 ( 1985 )

United States v. Ramiro Mesa-Farias , 53 F.3d 258 ( 1995 )

christine-l-miller-guardian-ad-litem-tonnie-savage-guardian-ad-litem-v , 335 F.3d 889 ( 2003 )

United States v. Kayle Nordby , 225 F.3d 1053 ( 2000 )

united-states-v-luttetus-perry-aka-ted-perry-united-states-of-america , 550 F.2d 524 ( 1977 )

United States v. Maria Velarde Anguiano , 873 F.2d 1314 ( 1989 )

United States v. Richard Virgil Bibbero, Jr., United States ... , 749 F.2d 581 ( 1984 )

United States v. Pineda-Doval , 614 F.3d 1019 ( 2010 )

United States v. Gregory Alan Morton , 999 F.2d 435 ( 1993 )

United States v. Ronald Peter Liquori, Sr., AKA Dirt , 5 F.3d 435 ( 1993 )

United States v. Way Quoe Long , 301 F.3d 1095 ( 2002 )

frank-atonio-eugene-baclig-randy-del-fierro-clarke-kido-lester , 810 F.2d 1477 ( 1987 )

united-states-v-edward-lee-baker-aka-eddie-united-states-of-america-v , 10 F.3d 1374 ( 1993 )

View All Authorities »