United States v. James Manuel Banuelos

322 F.3d 700 UNITED STATES of America, Plaintiff-Appellee, v. James Manuel BANUELOS, Defendant-Appellant. No. 01-50051. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 5, 2002. Filed March 10, 2003. COPYRIGHT MATERIAL OMITTED Janice M. Deaton, San Diego, CA, for the defendant-appellant. Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Todd W. Robinson, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CR-99-02071-IEG. Before PREGERSON, FISHER and TALLMAN, Circuit Judges. Opinion by Judge FISHER; Dissent by Judge TALLMAN. OPINION FISHER, Circuit Judge. 1 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…

Opinion by Judge FISHER; Dissent by Judge TALLMAN.

OPINION

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).

*703 FACTUAL & PROCEDURAL BACKGROUND

Banuelos was arrested for his involvement with Xclusive Auto Center, a San Diego…

dissenting in part.

The Apprendi error in this case was harmless beyond a reasonable doubt, and Banuelos’ sentence should therefore remain unchanged.

*708 Overwhelming evidence linked Banuelos to an extensive drug distribution conspiracy. Confronted with this evidence, Ban-uelos decided to plead guilty after the government agreed to drop a methamphetamine distribution count. During his plea colloquy, Banuelos admitted his participation in the conspiracy. He further conceded that the conspiracy distributed more than 1,000 kilograms of marijuana. Because Pinkerton v. United States, 328 U.S. 640 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946), instructs that a conspirator is generally liable for the reasonably foreseeable acts of his co-conspirators — and a conspiracy to distribute 1,000 or more kilograms of marijuana is punishable by up to life imprisonment under 21 U.S.C. § 841 (b)(1)(A) — one might have thought Banuelos sealed his fate by making these admissions.

Nevertheless, with nothing to lose, Ban-uelos decided to roll the dice and challenge at sentencing the quantity of marijuana distributed by the conspiracy that was attributable to him. He argued that he was not responsible for…