Sunday, July 17, 2016

Case o' The Week: The Sixth & the Ninth - Pimentel-Lopez, Jury "Drug Amount" Verdicts, and Guideline Sentences in Drug Cases

 Here’s a radical Sixth Amendment wish: respect the crucial role of juries, by constraining the guideline calcs of sentencing judges with the findings in a jury’s verdict.
  (Wish granted).
United States v. Pimentel-Lopez, No. 14-30210 (9th Cir. July 15, 2016), decision available here.

Honorable Judges W. Fletcher, Kozinski, and Fisher
 Players: Decision by Judge Kozinski, joined by Judges Fletcher and Fisher.  

Facts: Pimentel-Lopez was convicted of possession with intent and conspiracy to distribute meth. Id. at *3. The jury completed a form, provided with the consent of the parties, that attributed to Pimentel less than 50 grams of a substance containing a detectible amount of meth. Id. 
  At sentencing, the district judge found the actual quantity was over 4 kilos, with a guideline range of 235-293 months. The judge imposed 20 years. Id. at 5. Without the court’s “over 50 gram” determination, the guideline range would have been 63-78 months. Id.

Issue(s): “The jury in defendant’s criminal case made a special finding that the quantity of drugs involved was ‘less than 50 grams.’ We consider whether the district judge may nevertheless calculate defendant’s sentence based on the judge’s finding that the quantity involved was far in excess of 50 grams.” Id. at 3. 
  “The principal question presented is whether the district judge was entitled to make a drug quantity finding in excess of that found by the jury in its special verdict. The district court believed it was entitled to do so because ‘[t]here is no increase in the statutory maximum sentence beyond the 20 years or 240 months that is charged in the [i]ndictment.’” Id. at 5.

Held: “The jury found “beyond a reasonable doubt [that] the amount of [methamphetamine] attributable to Jesus Pimentel-Lopez [is] . . . [l]ess than 50 grams.” This is not a case where the jury failed to find a fact under the exacting standard applicable to criminal cases . . . . Where this happens, the district judge is free to find the same fact under a less stringent standard of proof. Id. Rather, what we have here is a case where the jury made an affirmative finding, under the highest standard of proof known to our law, that the amount of methamphetamine attributable to defendant is less than 50 grams. The district court cannot attribute more than that amount to defendant without contradicting the jury on a fact it found as a result of its deliberations. District judges have many powers, but contradicting juries as to findings of facts they have been asked to make is not among them.” Id. at 6 (internal citation omitted).
  “In our case, the jury was asked to find the upper limit of the quantity of illegal drugs involved in Pimentel-Lopez’s crimes, and it did just that: ‘[T]he amount of [methamphetamine] attributable to Jesus Pimentel-Lopez [is] . . . [l]ess than 50 grams.’ This was not a gratuitous finding added by the jury of its own accord . . . . The parties presented evidence on point and the jury was instructed that this was a permissible finding. In such circumstances, the finding is binding, no matter how inconvenient it may be in subsequent proceedings.” Id. at 7 (internal citation omitted).

Of Note: Judge Kozinski muses that it might have been a “blunder” for the government to agree to this “amount” verdict form. Id. at 10. If it was a blunder, it was an understandable one – the Ninth Circuit recommends an instruction nearly identical to the one given! See 9.16, Determining Amount of Controlled Substance,” available here. 
Ninth Cir. Model Criminal Jury Instruction 9.16
 Read Ninth Circuit Model Criminal Jury Instructions 9.15, 9.16, and Pimentel-Lopez together. If the government wants drug mand-mins, it appears to need the Ninth’s 9.16 “amount” jury form . . . but if the jury then finds a lower drug amount, the district court’s guideline calcs are later constrained by the jury’s findings.  

How to Use: A sentencing judge’s guideline calcs are constrained by the drug amounts found by the jury. Mull pages 9-10 of Pimentel-Lopez carefully, and that seems to be the inescapable holding. Ninth Instruction 9.16 and Pimentel-Lopez, together, may make it worthwhile to go to trial solely to seek a jury finding of a lower drug amount – a finding that will constrain a later guideline range. 
For Further Reading: Does this all seem a little . . . muddled? It is. This morass arises from the Ninth’s regrettable refusal to recognize that drug amounts and drug types are really just Apprendi elements of Section 841 and 846 offenses. See United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc). 
 For a rational analysis of what should happen, if “writing on a clean slate,” consider Judge W. Fletcher’s concurrence in United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015), available here
  (And for extra credit, consider the logical extension of the Pimentel-Lopez's "jury-respect" principle to the damnable practice of using acquitted conduct at sentencing -- a practice lambasted by another notable Ninth Circuit Fletcher. See blog on United States v. Mercado, here.)

Image of the Honorable Judges Fletcher, Kozinski, and Fisher from

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

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