Case o' The Week: MJ on the Mind - Jauregui, Apprendi and Conspiracy to Import Drugs

Hon. Judge Marsha Berzon

Clients' thoughts dwell on pot? 

Term for meth ought to be fought.   

United States v. Jauregui, 2019 WL 1302913 (9th Cir. Mar. 22, 2019), decision available here.

Players: Decision and concurrence by Judge Berzon, decision joined by Judge N.R. Smith. Dissent by visiting D.J. Castel.

  Big win for AFD Kimberly Trimble, Federal Defenders of San Diego, Inc.  

Facts: When Jauregui tried to enter the US from Mexico border agents found six kilos of meth in his car. Id. When interrogated, Jauregui explained that he knew that the car had been intended to smuggle marijuana, but that he thought the drugs had been removed when he borrowed the car. Id.

  He pleaded guilty to conspiracy to import drugs. Id. At the plea, Jauregui admitted to conspiring to importing a schedule I or a schedule II drug. Id. at *2. When the DJ balked, the AUSA assured him the factual basis sufficed because of Pinkerton liability for the meth. Id.

  The court later sentenced for meth.     

Issue(s): “Applying § 960(b), the district court sentenced Jauregui to seventy-one months of incarceration, less than the statutory maximum for methamphetamine but more than the statutory maximum for marijuana. Whether that sentence is permissible turns on whether, in the course of pleading guilty, Jauregui admitted to conspiring to import methamphetamine.” Id. at *3.

  “Our question, then, is whether Jauregui’s admission —that ‘it was reasonably foreseeable that the controlled substance may be methamphetamine’—was sufficient under Apprendi to expose Jauregui to sentencing under the statutory maximum for conspiracy to import methamphetamine.” Id. at *5.

   “Under federal law, the statutory maximum sentence for conspiracy to import a controlled substance depends on the specific, agreed-upon controlled substance ‘involv[ed].’ 21 U.S.C. §§ 960(b), 963. We consider whether, consistent with the Sixth Amendment’s jury trial guarantee, Martin Jauregui’s sentence for conspiracy to import methamphetamine can be sustained solely by his admission that he conspired to import marijuana but it was ‘reasonably foreseeable’ that methamphetamine would be imported.” Id. at *1.

Held: “We hold that it cannot.” Id.

  “As Jauregui’s admissions did not establish the existence of a conspiracy to import methamphetamine, he could not properly be sentenced for conspiracy to import methamphetamine.” Id. at *5.

Of Note: Jauregui is a fascinating Apprendi decision, worth a close read for the interplay of Buckland, Thomas, and drug conspiracy law. Even more interesting, however, is Judge Berzon’s compelling call for en banc review of United States v. Banuelos, 322 F.3d700 (9th Cir. 2003). See id. at *8 (Berzon, J., concurring).

  Judge Berzon sets out how over the years the Ninth has muddied already murky conspiracy waters. Id. She explains, “Following these twists and turns, it appears that Banuelos unwittingly imported the test for Pinkerton liability for substantive crimes in furtherance of a conspiracy into the determination of whether a defendant can be held liable for the crime of conspiracy itself, thereby conflating liability for the crime of conspiracy and for substantive crimes committed by the conspiracy.” Id. at *10.

  Judge Berzon is right --the complex analysis necessary in the Jauregui opinion shows how goofy and unfair conspiracy law has become. Banuelos should go en banc.

How to Use: Client charged with a drug conspiracy? Read Jauregui. In addition to the Banuelos issues to preserve for e.b. review, Judge Berzon teases out the ramifications of the Ninth’s Thomas decision, on drug types and amounts. See id. at *4. Drug type is not a necessary element of possession of drugs under Section 841 – and after Jauregui, it is not an element of importation offenses under Section 860. Id. Pleading to a conspiracy – but contesting knowledge of drug types and amounts for mand-mins – may be a little easier after Jauregui.

                                               

For Further Reading: For an interesting discussion of these issues - including Pinkerton liability in federal drug conspiracy law – see Alex Kreit, “Vicarious Criminal Liability and the Constitutional Dimensions of

Pinkerton,” 57 Am. U. Law Rev. 3 (February, 2008), available here. 

Image of Hon. Judge Marsha Berzon from https://www.law.berkeley.edu/article/judicial-externs-debt-gratitude/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

.,.