United States v. James Manuel Banuelos , 322 F.3d 700 ( 2003 )

Opinion by Judge FISHER; Dissent by Judge TALLMAN.

OPINION

FISHER, Circuit Judge.

We are once again confronted with an Apprendi-based challenge to a sentence for a federal drug offense. James Manuel Banuelos contends that the district court erred in sentencing him to 120 months in prison for conspiracy to distribute controlled substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1). We agree. It is well settled that, in determining for purposes of sentencing the quantity of drugs for which a conspirator will be held responsible, the district court is required to determine the quantity of drugs the conspirator “reasonably foresaw or which fell within ‘the scope’ of his particular agreement with the conspirators.” United States v. Petty, 992 F.2d 887, 890 (9th Cir.1993). We now hold that, where such a finding exposes the conspirator to a higher statutory maximum than he otherwise would face, the finding must be made by the jury, or, in the case of a guilty plea, by the court beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

FACTUAL & PROCEDURAL BACKGROUND

Banuelos was arrested for his involvement with Xclusive Auto Center, a San Diego business that served as a narcotics brokerage house — a hub for drug wholesalers to deliver their products to transportation and distribution organizations. Banuelos acted as a broker who arranged the delivery of shipments of marijuana between wholesale distributors and transportation and distribution organizations.

The government charged Banuelos and 25 other individuals in a multi-count indictment. He ultimately pled guilty to Count Two, which charged him with conspiracy to distribute controlled substances, including marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1). Count Two named Banue-los in several overt acts, including the delivery of 100 pounds of marijuana on oné occasion, the delivery of 75 pounds of marijuana on another day and the receipt of 300 pounds of marijuana.

At the change of plea hearing, Banuelos agreed that “the government could prove in this case that the total amount of marijuana that is attributable to this conspiracy is 1000 kilograms,” but he disputed that the 1000 kilograms should be personally attributed to him for purposes of sentencing. The district court informed Banuelos that the mandatory minimum would be 10 years and that the maximum would be life imprisonment. The court explained that those would be the minimum and maximum sentences “if [the court found] that [Banuelos was] responsible for the entire amount of drugs that was distributed by the conspirators in this case.”

The court identified two issues to be resolved at the sentencing hearing:

Okay. So we are proceeding along the marijuana — deciding how much marijuana the conspiracy was involved in distributing, and then how much of that you should be liable for. So those are two different issues.

Banuelos did not dispute that the conspiracy distributed more than 1000 kilograms of marijuana, and he confirmed that he was waiving his right to have a jury decide that issue. Banuelos did not, however, explicitly waive his right to a jury determination of drug quantity attributable to him.¹ He continued to dispute that he should be held liable for the entire quantity of drugs distributed by the conspiracy, and he maintained that the district court was required to make the finding of drug quantity attributable to him beyond a reasonable doubt. The court disagreed and instead found by clear and convincing evidence that Banuelos was “personally responsible for at least 1000 kilograms of marijuana” and that the quantity distributed by the conspiracy was reasonably foreseeable to him. Based on' those findings, the court sentenced Banuelos pursuant to § 841(b)(1)(A), which imposes a mandatory minimum of 10 years in prison and a maximum sentence of life imprisonment for offenses “involving ... 1000 kilograms or more of a mixture or substance containing a detectable amount of marijuana.” The court sentenced Banuelos to 120 months in prison and five years of supervised release. Had the district court sentenced Banuelos for conspiracy to distribute an unspecified quantity of marijuana, it would have looked to § 841(b)(1)(D), which provides for a maximum sentence of five years in prison and no mandatory minimum.

On appeal, Banuelos claims that the district court employed the wrong burden of proof to determine the quantity of drugs for which he should be held responsible.² We reverse and remand for resentencing.

STANDARD OF REVIEW

Whether the district court applied the correct burden of proof in attributing drug quantity to Banuelos and whether the district court properly applied Apprendi are questions of law that we review de novo. United States v. Gill, 280 F.3d 923, 930 (9th Cir.2002).

ANALYSIS

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In sentencing a defendant convicted of conspiracy to distribute a controlled substance, a district court may not automatically count as relevant conduct the entire quantity of drugs distributed by the conspiracy. United States v. Garcia-Sanchez, 189 F.3d 1143, 1147 (9th Cir.1999). Rather, the court must find the quantity of drugs that either (1) fell within the scope of the defendant’s agreement with his coconspirators or (2) was reasonably foreseeable to the defendant. United States v. Gutierrez-Hernandez, 94 F.3d 582, 585(9th Cir.1996); Petty, 992 F.2d at 890. This rule is well-settled as a matter of sentencing under the Guidelines, but we have also applied it to sentencing under the statute of offense. United States v. Becerra, 992 F.2d 960, 966-67 & n. 2 (9th Cir.1993) (holding that court may not impose statutory mandatory minimum without finding that “a particular defendant had some connection with the larger amount on which the sentencing is based or that he could reasonably foresee that such an amount would be involved in the transactions of which he was guilty”); see also United States v. Mesa-Farias, 53 F.3d 258, 260 (9th Cir.1995) (describing Becerra as requiring that “sentencing for conspiracy be the same under § 841(b) as under the Sentencing Guidelines”). Thus, in order to sentence Banuelos pursuant to § 841(b)(1)(A) — or any penalty provision tied to a particular type or quantity of drug — the district court was required to find not only that the conspiracy distributed a particular type and quantity of drugs, but also that the type and quantity were either within the scope of Banuelos’ agreement with his coconspirators or that the type and quantity were reasonably foreseeable to Banuelos.

Banuelos does not dispute that the district court conducted the proper substantive inquiry here, and the record reflects that the district court considered both whether Banuelos himself distributed more than 1000 kilograms of marijuana and whether that amount was reasonably foreseeable. Rather, Banuelos’ challenge, which we find meritorious, is based on the district court’s choice as to the proper burden of proof.

Apprendi requires the government to prove beyond a reasonable doubt any fact, other than a prior conviction, that exposes the defendant to a greater punishment than that authorized by the guilty verdict or plea. Apprendi, 530 U.S. at 489, 494, 120 S.Ct. 2348. Where a defendant claims the district court violated Ap-prendi, we first determine the statutory maximum punishment authorized by the guilty verdict or plea. If the conviction follows a jury trial, we scrutinize the jury verdict and ascertain the explicit and implicit findings made by the jury. In the case of a guilty plea, the defendant admits guilt beyond a reasonable doubt and it is necessary to examine the substánce of the plea to determine the facts to which the defendant has admitted. Here, Banuelos pled guilty to conspiracy to distribute an unspecified amount of marijuana. This crime carries a statutory maximum penalty of five years in prison and at least two years of supervised release. 21 U.S.C. § 841(b)(1)(D).

The next step in assessing a claim of Apprendi error is to determine whether the court made any findings that exposed the defendant to a greater statutory maximum punishment than that authorized by the plea. Here, the district court made two relevant findings, only one beyond a reasonable doubt. On the basis of Banuelos’ own admission, the district court found beyond a reasonable doubt that the conspiracy distributed more than 1000 kilograms of marijuana. However, the district court employed a clear and convincing standard of proof in determining “the quantity of drugs that[Banuelos] reasonably foresaw would be distributed or that fell within the scope of his own agreement with his co-conspirators.” Becerra, 992 F.2d at 966. On the basis of those findings, the court sentenced Banue-los pursuant to § 841(b)(1)(A), which carries a maximum sentence of life in prison. Because the district court’s findings exposed Banuelos to a higher statutory maximum than he would otherwise face (five years), the court’s determination of drug quantity attributable to Banuelos by clear and convincing evidence violated Apprendi,³ See United States v. Velasco-Heredia, 319 F.3d 1080, 2003 WL 152767 at *5 (9th Cir.2003) (holding that Apprendi error occurred when trial court used preponderance of the evidence standard at sentencing to determine drug quantity attributable to the defendant).

We next review the Apprendi violation for harmless error. “Although our cases sometime conflate the question of whether an Apprendi violation occurred with the question of whether the error requires resentencing, the inquiries are distinct.” United States v. Minore, 292 F.3d 1109, 1121 n. 10 (9th Cir.2002); see also Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 2439, 153 L.Ed.2d 556 (2002) (“If a State makes an increase in a defendant’s authorized punishment contingent on a finding of fact, that fact ... must be found by a jury beyond a reasonable doubt.” (emphasis added)); United States v. Antonakeas, 255 F.3d 714, 728 (9th Cir.2001) (separating error analysis from prejudice analysis); United States v. Garcia-Guizar, 234 F.3d 483, 488-89 (9th Cir.2000) (same); United States v. Scheele, 231 F.3d 492, 497 n. 2 (9th Cir.2000) (same). In determining whether the district court’s error requires reversal, we focus on the prejudice to Banuelos. Because the court actually imposed a sentence of 10 years— far greater than the permissible five year maximum — the Apprendi error was not harmless beyond a reasonable doubt.⁴ United States v. Tighe, 266 F.3d 1187, 1195 (9th Cir.2001) (reversing for Appren-di error because sentence imposed exceeded the applicable statutory maximum based upon the verdict).

Because Banuelos challenged only his sentence, and not his conviction, we are required to remand the case with instructions to the district court to resentence Banuelos “subject to the maximum sentence supported by the facts found by the [fact-finder] beyond a reasonable doubt.” Nordby, 225 F.3d at 1062 (explaining that new trial may be ordered to correct sentencing error where defendant challenges both conviction and sentence, but court may not order a retrial of a conviction that the defendant “has accepted as final”); see also Velasco-Heredia, 319 F.3d 1080, 2003 WL 152767 at *6 (remanding for resen-tencing under § 841(b)(1)(D) when drug quantity attributable to the defendant was not proved beyond a reasonable doubt). As discussed above, Banuelos admitted beyond a reasonable doubt that he conspired to distribute an unspecified amount of marijuana. Thus he was properly convicted of the general offense set forth in § 841(a)(1) — the offense charged in the indictment and the only offense for which there was a factual basis for conviction, because Banuelos did not allocute to drug quantity at the change of plea hearing or admit to drug quantity in a written plea agreement. Accordingly, the maximum permissible sentence on remand is five years in prison, pursuant to 21 U.S.C. § 841(b)(1)(D).

II.

In the alternative, the government contends that Banuelos pled guilty to conspiracy to distribute an unspecified quantity of methamphetamine as well as marijuana and thus that he properly could have been sentenced to as many as 20 years in prison, pursuant to § 841(b)(1)(C). We agree that had Banuelos admitted beyond a reasonable doubt that he conspired to distribute methamphetamine, any Apprendi error would likely be harmless because Banuelos was sentenced to fewer than 20 years in prison. See United States v. Saya, 247 F.3d 929, 942 (9th Cir.) (suggesting that Apprendi error will be harmless unless the sentence imposed exceeds the statutory maximum authorized by the guilty verdict), cert. denied, 534 U.S. 1009, 122 S.Ct. 493, 151 L.Ed.2d 404 (2001). We disagree, however, with the government’s characterization of Banuelos’ guilty plea.

It is true that Count Two of the indictment charged Banuelos with conspiracy to distribute methamphetamine as well as marijuana, and one of the overt acts listed in the count charged that Banuelos sold a pound of methamphetamine to an undercover agent. It is also true that the court described the charge as conspiracy to distribute marijuana and methamphetamine:

The Clerk: Mr. Banuelos, how do you now plead then to Count Two of the superseding indictment which charges you with conspiracy to distribute a controlled substance, which is marijuana and methamphetamine? Are you guilty or not guilty?

Banuelos: Guilty.

Moreover, Banuelos admitted during the plea colloquy that he sold one pound of methamphetamine to an undercover agent. More importantly, however, Banuelos consistently maintained during the change of plea hearing that he was entrapped to sell methamphetamine. Cf. United States v. Silva, 247 F.3d 1051, 1060 (9th Cir.2001) (rejecting Apprendi challenge where defendants pled guilty to conspiracy to manufacture with intent to distribute 50 grams or more of methamphetamine without ever disputing their involvement with that drug type and quantity). In assessing the scope of the facts established beyond a reasonable doubt by a guilty plea, we must look at what the defendant actually agreed to— that is, what was actually established beyond a reasonable doubt. Here, conspiracy to distribute methamphetamine never attained this status. Consequently, the only crime to which Banuelos admitted guilt beyond a reasonable doubt was conspiracy to distribute an unspecified amount of marijuana.⁵ As discussed above, this crime carries a statutory maximum penalty of five years in prison.

REVERSED and REMANDED.

1 . The court’s discussion with Banuelos’ counsel makes this clear:

THE COURT: See, there are two issues: What was the amount in the conspiracy, and what was the amount attributable to the defendant? And you’re saying your client is willing to waive juiy as to the amount of drugs distributed by the conspiracy?

MS. DEATON: That’s correct.

The court reiterated the specifics of the waiver with Banuelos a few minutes later:

THE COURT: Now, Mr. Banuelos, do [you] understand that you also have the right to a jury trial on the total amount of drugs that this conspiracy is alleged to have distributed. Do you understand that?

THE DEFENDANT: Yeah, I’m aware of that.

2 . Banuelos also argues on appeal that the district court erred in sentencing him under 21 U.S.C. § 841(b)(1)(A) because the indictment did not charge drug quantity. We need not reach this issue, because we reverse and remand on the basis of the court’s erroneous decision to employ a clear and convincing standard of proof.

3 . The court's finding of drug quantity attributable to Banuelos by any standard, without first advising Banuelos that he had a right to jury determination of that fact beyond a reasonable doubt, also violated Apprendi. See United States v. Minore, 292 F.3d 1109, 1117 (9th Cir.2002) (holding that if drug quantity exposes a defendant to a higher statutory maximum sentence than he would otherwise receive, it is the functional equivalent of a critical element of the offense for Rule 11 purposes, and therefore the district court must inform the defendant that he is entitled to a jury determination of drug quantity beyond a reasonable doubt before accepting the defendant’s plea). Banuelos, however, has not made this Apprendi violation the basis of his appeal.

4 . In arguing that the Apprendi error in this case was harmless, the dissent maintains that we should look to the record of Banuelos' sentencing proceedings to determine that the evidence supports a finding of drug quantity beyond a reasonable doubt. Not only has the government failed to request that we make such a determination, but as the dissent acknowledges, our decisions in United States v. Jordan, 291 F.3d 1091, 1097 (9th Cir.2002), and United States v. Nordby, 225 F.3d 1053, 1061 n. 6 (9th Cir.2000), overruled on other grounds by United States v. Buckland, 289 F.3d 558, 568 (9th Cir.2002) (enbanc), explicitly prohibit us from considering admissions made at sentencing in evaluating an Apprendi violation for harmless error. The dissent urges that Jordan and Nordby do not control our analysis here because the verdicts in those cases resulted from jury trials, whereas Banuelos pled guilty and therefore "the only relevant issue remaining before the district court was to be decided at sentencing." However, as we explained above, see note 3, supra, the very finding of an Apprendi violation means that it was improper for the district court to determine drug quantity attributable to Banuelos at sentencing without first informing Banuelos of his right to a jury determination of drug quantity attributable to him beyond a reasonable doubt. See Minore, 292 F.3d at 1117. The record reflects that the district court did not so advise Banuelos and that Banuelos did not explicitly waive his right to a jury determination of drug quantity attributable to him. See note 1, supra. That Banuelos pled guilty, therefore, does not mean that we can ignore Jordan, in which we rejected the approach the dissent suggests and held that “the government cannot meet its burden under the harmless error standard when drug quantity is neither charged in the indictment nor proved to a jury beyond a reasonable doubt, if the sentence received is greater than the combined maximum sentences for the indeterminate quantity offenses charged.” Jordan, 291 F.3d at 1097.

We are also unpersuaded by the dissent’s suggestion that the Supreme Court's decision in United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002), "undercuts” the holding of Jordan. In Vonn, the court addressed the proper scope of an appellate court's inquiry into the effect of a Rule 11 violation. Vonn did not address the very different issue of reviewing an Apprendi violation for harmless error. Indeed, this court implicitly recognized the inapplicability of Vonn to the Apprendi context when it issued its decision in Jordan — two months after the Supreme Court decided Vonn.

5 . Indeed, at the sentencing hearing, the government dropped its argument that Banuelos was responsible for any methamphetamine. The government stated that it would not "ask the court to include that one pound of methamphetamine in its drug calculus in terms of reaching the base offense level and/or applying any mandatory minimum sentence.”