United States v. Raul Arcila ( 2018 )

FILED
NOT FOR PUBLICATION
MAR 19 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30109
Plaintiff-Appellee, D.C. No. 3:14-cr-00267-BR-3
v.
MEMORANDUM*
RAUL ARCILA,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-30110
Plaintiff-Appellee, D.C. No. 3:14-cr-00267-BR-1
v.
FABIAN SANDOVAL-RAMOS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted March 6, 2018
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FISHER, N.R. SMITH, and HURWITZ, Circuit Judges.
Raul Arcila and Fabian Sandoval-Ramos (“Defendants”) were convicted of
conspiracy to distribute heroin resulting in death. 21 U.S.C. § 841(a)(1), (b)(1)(C).
They appeal their convictions and sentences. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
1. The district court did not commit plain error by instructing the jury to
answer a special verdict question regarding whether death was a foreseeable result
of the conspiracy. When a defendant does not object to jury instructions at trial, we
review those instructions for plain error. United States v. Sanders, 421 F.3d 1044,
1050 (9th Cir. 2005). “A trial court commits plain error when (1) there is error, (2)
that is plain, and (3) the error affects substantial rights.” United States v. Fuchs,
218 F.3d 957, 962 (9th Cir. 2000).
In United States v. Houston, we held that the death resulting from the
distribution of a controlled substance need not have been reasonably foreseeable in
order for the penalty enhancement in § 841(b)(1)(C) to apply. 406 F.3d 1121, 1123
(9th Cir. 2005). We noted that, although other cases had required the government
to prove the defendant’s conduct proximately cause the resulting injury, those
cases “involved crimes such as involuntary manslaughter and conspiracy that
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impose criminal culpability only when the consequences of the criminal act are
reasonably foreseeable.” Id. (emphasis added). Here, the government requested the
special verdict question, because it was concerned that the holding in Houston did
not extend to conspiracies. Because Houston implied conspiracies may require
proof of proximate cause, the district court did not commit plain error by including
the special verdict question. Moreover, Defendants cannot show prejudice from the
question; if, as Defendants contend, only but-for causation was required, the
special question verdict suggested a higher burden of proof.
2. Because the district court did not err in including the special verdict
question, it also did not commit plain error by allowing the government to
introduce evidence regarding the harmful and deadly effects of heroin usage. Such
evidence was relevant to prove that death was a reasonably foreseeable result of the
conspiracy to distribute heroin.
3. Defendants’ argument that the district court committed plain error by
allowing the government to introduce hearsay statements lacks merit. The
statements were not hearsay, because they were not introduced for the truth of the
matter asserted in the statements. Fed. R. Evid. 801(c). Rather, the statements were
introduced to show the effect they had on the listeners. See United States v. Torres,
794 F.3d 1053, 1057 (9th Cir. 2015). When evidence can be used for two different
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purposes, one permissible and one impermissible, a court may allow the
introduction of the evidence for the permissible purpose. United States v. Flores,
802 F.3d 1028, 1047 (9th Cir. 2015).
4. The district court did not err in applying the penalty enhancement in
§ 841(b)(1)(C). Section 846 provides that “[a]ny person who attempts or conspires
to commit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.” 21 U.S.C. § 846 (emphasis added).
Defendants conspired to violate § 841(a), i.e., distribution of a controlled
substance. Therefore, they are subject to the same penalty as if they had actually
violated § 841(a). The penalty enhancement in § 841(b)(1)(C) applies when the use
of the controlled substance distributed in violation of § 841(a) is the but-for cause
of a death. Burrage v. United States, 134 S. Ct. 881, 892 (2014). Thus, the district
court did not err in applying the penalty enhancement provision, because the heroin
distributed as a result of Defendants’ conspiracy to violate § 841(a) caused a
death.1
1
Whether the government is required to prove proximate causation in
addition to actual causation in the case of a conspiracy has not yet been answered
directly. Here, however, the jury found both actual and proximate causation.
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The government did not need to prove that the object of the conspiracy was
to violate the penalty enhancement provision in § 841(b)(1)(C), i.e., to cause death,
because a sentencing enhancement is not part of the underlying offense. See United
States v. Vera, 770 F.3d 1232, 1249 (9th Cir. 2014). (holding that the factual
predicate to a sentencing enhancement was merely “the functional equivalent of an
element that had to be submitted to a jury and proved beyond a reasonable doubt
for the purposes of sentencing alone” (quotation marks and citation omitted)).
Consequently, the district court did not err in applying the penalty enhancement in
§ 841(b)(1)(C).
5. The district court sentenced Defendants to the statutory minimum sentence.
Thus, any error in calculating their respective sentencing guideline ranges was
harmless.
AFFIRMED.
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