Friday, September 08, 2017

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:


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