Sunday, December 09, 2007

Case o' The Week: Ninth Could Use a (Learned) Hand in Conspiracy Cases, Macias-Valencia

You have to actually possess sufficient amounts of specific drugs to get a mandatory minimum sentence under federal drug law. See 21 USC Section 841(a).

(Unless, of course, you're charged with
conspiring to violate those laws . . . in which case, no actual drugs need to be involved at all, to earn a ten year mandatory minimum sentence. See United States v. Macias-Valencia, __ F.3d __, 2007 WL 4246068 (9th Cir. Dec. 5, 2007), decision available here)).

Learned would be dubious (right).

Players: Hard-fought appeal by veteran SF defense attorney Rommel Bondoc, decision by Judge Graber.

Facts: The DEA set up a “reverse-sting” with Macias-Valencia and his brother. Id. An undercover DEA agent offered to sell Macias-Valencia meth in two one-pound transactions. Id. Macias-Valencia and his brother were busted when they showed up with over $4,600 in cash and met with the agent to complete the sale. Id. No actual meth, however, was ever involved in the investigation or arrest. Id.

At sentencing, San Jose District Judge Whyte imposed the ten-year mandatory minimum required by the drug and conspiracy statutes, 21 USC §§ 841 and 846 (though he suggested that might have sentenced lower under the guidelines) Id. He rejected the defense argument that the “statutory maximum sentence should not apply because no actual contraband was involved in the commission of the offense.” Id.

Issue(s): “Does the mandatory minimum sentence of 10 years, prescribed by 21 USC § 841(b)(1)(A)(viii), apply to a conviction for conspiracy with intent to distribute, and attempted possession to distribute, 50 grams or more of methamphetamine, even when no actual contraband was involved in the commission of the offense? Id. at *1.

Held: “Joining the Sixth Circuit, we answer ‘yes.’” Id. “In summary, Congress has dictated that a conviction for a conspiracy to distribute or an attempt to distribute a controlled substance carries the same penalty as a conviction for the distribution of the same amount of the same controlled substance. Neither a conspiracy conviction nor an attempt conviction requires the delivery, presence, or even existence of actual contraband. It follows that the district court properly imposed the mandatory minimum sentence here.” Id. at *4.

Of Note: The rub in this decision is that the substantive offense – possession for sale, 21 USC § 841(a) – requires proof that the defendant knowingly possessed a controlled substance and had the intention to distribute it. Id. The defense here (logically) argued that conspiring to commit that substantive offense should require that same element: in other words, a conspiracy to sell drugs should require actual drugs somewhere in the transaction, before a mandatory minimum sentence kicks in. Id. Judge Graber (joined by Judges Beezer and Trott) disagreed.

According to the panel, the statutory text “is clear.” Id. at *2. The result is that Macias-Valencia gets a ten-year mandatory minimum sentence for conspiring to commit a substantive crime (possession for sale), when there were never actually any drugs and he could not have, therefore, have been found guilty for the substantive crime itself! Conspiracy remains “that darling of the modern prosecutor’s nursery,” eight decades after Judge Learned Hand’s memorable quote. Harrison v. United States, 7 F.2d 259, 263 (2d Cir. 1925).

A previous Ninth Circuit panel (Judges Lay, Hug, and Schroeder) flat-out agreed with the defense argument that a mand-min sentence for a conspiracy conviction requires actual controlled substances. United States v. Steward, 16 F.3d 317, 322 (9th Cir. 1994). The panel here avoids an en banc referral by characterizing the Steward holding as “dicta.” Macias-Valencia, 2007 WL 4246068, *3. “Dicta?” Maybe, but dicta that is directly on-point, from two former Chief Ninth Circuit Judges. Seems en banc review would be the better course – particularly because the panel crafts a new (and bad) Ninth rule.

How to Use: Beware: Macias-Valencia will undoubtably be abused to bootstrap high mandatory-minimum sentences into drug cases that wouldn’t otherwise qualify because there are no drugs involved, or insufficient drugs to trigger the mand-mins. The decision is particularly dangerous in a world where snitches and DEA agents routinely push our clients into dealing much larger amounts than is their normal “business practice.” Add the fact that you don’t actually need an overt act alleged or proved in a drug conspiracy, United States v. Travelman, 650 F.2d 1133, 1137 (9th Cir. 1981), and the new rule of Macias-Valencia will create some horribly unjust cases.

For Further Reading: For a very interesting article suggesting much-needed reform of conspiracy law, see Benjamin E. Rosenberg, Several Problems in Criminal Conspiracy Laws and Some Proposals for Reform, 43 No. 4 Crim. Law Bulletin 1, July-Aug. 2007.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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