US v. Torres, No.13-50088 (9-6-17)(Ikuta, specially
concurring on one issue, w/ Block; Clifton concurring). This is a 841 case
revolving around a jury's assigning drug quantities to criminal conduct. The issue is whether a disjunctive or
conjunctive formulation should be used in instruction 50 for culpability. Huh?
Okay, here we go--the
9th in Becerra, 992 F.2d 960 (9th Cir
1993), held that a coconspirator's responsibility was disjunctive
("or") in that the drug quantities attributable to a coconspirator
had to be either reasonably foreseeable or that fell within the scope of his
agreement. The 9th reasoned that the
analysis should follow the Guidelines' formulation. The 9th rejected the
government's argument that the analysis for culpability should differ between
the mandatory minimum and the Guidelines.
The 9th looked to the Guidelines' formulation. But wait...what if the Guidelines' definition
changed? Did it? Yes, and sooner than the 9th thought.
Over the years, the
Guidelines were amended so that the responsibility had to be conjunctive: requiring
"and". The defendant was
responsible for conduct that was (1) reasonably foreseeable; and (2) or was
jointly undertaken or agreed to. The
Guidelines were amended in 1992 to this effect, so the 9th was already
late. The years have further undermined
reasoning. Subsequent cases recognized
this undermining, but either ignored it, or sidestepped it by only having the
issue deal with the Guidelines application only, and not the statutory
mandatory minimum. This case here
squarely deals with the issue...sort of.
Sort of? Well, yes,
because of "plain error." The
majority opinion on this issue, authored by Clifton, points out that the
precedents are a "mess" (his word), and that an en banc needs to
resolve this. The precedents rely on
reasoning that no longer exists--and makes reference to employing standards in
the Guidelines that have been subsequently amended several times. Reversal of life sentences for these Mexican
gang members? No.
It is "No"
because of "plain error." The
instruction was not objected to by defense counsel. Thus, under a plain error analysis, there was
sufficient evidence that the defendants' substantive rights were not
violated. So, the en banc may wait for
the next case, which, under this Administration, may be coming soon.
Ikuta, in the
majority for the other issues (not nearly as interesting) finds no error in:
(1) refusing a multiple conspiracy
instruction; (2) not finding that the state convictions overlapped with the
federal charges, and so were not priors convictions under 841; and (3) no
Apprendi error.
In her special concurrence for the
disjunctive issue, Ikuta finds that the precedent is good law and there was
simply no error as the district court followed precedent.
The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/06/13-50088.pdf
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