United States v. Robert Mercado, Jr., United States of America v. Daniel Bravo, Aka's Sporty Seal G

474 F.3d 654 UNITED STATES of America, Plaintiff-Appellee, v. Robert MERCADO, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Daniel Bravo, aka's Sporty; Seal G, Defendant-Appellant. No. 05-50624. No. 05-50860. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 13, 2006. Filed January 22, 2007. Terry Amdur, Pasadena, CA, for defendant-appellant. Mercado; Elliot E. Stanford, Pacific Palisades, CA, for defendant-appellant Bravo. Robert E. Dugdale, Assistant United States Attorney, Organized Crime and Terrorism Section, Los Angeles, CA, for the plaintiff-appellee. Appeals from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. Nos. CR-99-00083-DOC-11, CR-99-00083-DOC-7. Before: B. FLETCHER, FERNANDEZ, and GRABER, Circuit Judges. Opinion by Judge FERNANDEZ; Dissent by Judge BETTY B. FLETCHER FERNANDEZ, Circuit Judge. 1 Robert Mercado, Jr., and Daniel Bravo appeal their sentences for conspiracy to violate RICO, 1 18 U.S.C. § 1962 (d), and for conspiracy to aid and abet narcotics trafficking. 21 U.S.C. § 846 . They assert that in calculating their…

Opinion by Judge FERNANDEZ; Dissent by Judge BETTY B. FLETCHER

Robert Mercado, Jr., and Daniel Bravo appeal their sentences for conspiracy to violate RICO, 1 18 U.S.C. § 1962 (d), and for conspiracy to aid and abet narcotics trafficking. 21 U.S.C. § 846 . They assert that in calculating their sentences under the United States Sentencing Guidelines, the district court erred when it considered criminal activity which had been charged in the indictment, but which the jury determined had not been proved beyond a reasonable doubt. We affirm.

BACKGROUND

As part of the government’s prosecution of members of the Mexican Mafia, Mercado and Bravo were charged with: (1) violating RICO, 18 U.S.C. § 1962 (c); (2) RICO conspiracy, 18 U.S.C. § 1962 (d); (3) conspiracy to distribute narcotics, 21 U.S.C. § 846 ; (4) five counts of violent crimes in aid of racketeering activity, 18 U.S.C. § 1959 (a); (5) conspiracy to commit murder; and (6) five counts of brandishing and discharging a firearm. They were found guilty of the RICO conspiracy and of the drug conspiracy, but were acquitted of the other charges.

At sentencing, 2 the district court stated that the question was “whether it remains…

dissenting.

I respectfully dissent from the majority’s holding that district courts can rely on acquitted conduct when sentencing criminal defendants. 1 Although the. majority holds that United States v. Watts, 519 U.S. 148 , 117 S.Ct. 633 , 136 L.Ed.2d 554 (1997) (per curiam), presents a “complete answer to the issue before us,” maj. op. at 656, the Supreme Court has concluded otherwise, as do I. United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). In Booker , the Court explained that Watts addressed only a “very narrow” Fifth Amendment issue unrelated to the Sixth Amendment question then before the Court. Id. at 240 & n. 4, 125 S.Ct. 738 . As the Court emphasized, Watts did not consider, let alone decide, whether the Sixth Amendment was violated by reliance on acquitted conduct at sentencing.

Despite this clear limitation of Watts’s holding, the majority here applies Watts to the Sixth Amendment issue before us, ignoring Booker’s requirement that the jury’s verdict alone must authorize a defendant’s sentence. Id. at 235 , 125 S.Ct. 738 . This application defies logic. When a jury refuses to convict defendants of several counts, but the trial court…