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United States v. Pimentel-Lopez

United States Court of Appeals, Ninth Circuit

July 15, 2016

United States of America, Plaintiff-Appellee,
v.
Jesus Pimentel-Lopez, Defendant-Appellant.

          Argued and Submitted October 15, 2015 Seattle, Washington

         Appeal from the United States District Court for the District of Montana Sam E. Haddon, Senior District Judge, Presiding D.C. No. 2:13-cr-00024-SEH-1

          Timothy M. Bechtold (argued), Bechtold Law Firm, PLLC, Missoula, Montana, for Defendant-Appellant.

          Zeno B. Baucus (argued) and Michael S. Lahr, Assistant United States Attorneys; Michael W. Cotter, United States Attorney; United States Attorney's Office, Helena, Montana; for Plaintiff-Appellee.

          Before: Alex Kozinski, William A. Fletcher and Raymond C. Fisher, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel vacated a sentence and remanded for resentencing in a case in which the jury made a special finding that the quantity of drugs involved was less than 50 grams, but the district judge calculated the sentence based on his own finding that the quantity involved was far in excess of 50 grams.

         The panel wrote that the Apprendi v. New Jersey line of cases is beside the point because the defendant is not complaining that the district court raised the maximum statutory sentence, and that this is not a case where the jury failed to find a fact under the exacting standard applicable to criminal cases. The panel explained that this is a case where the jury made an affirmative finding after deliberations, under the highest standard of proof, that the amount of methamphetamine attributable to the defendant is less than 50 grams. The panel held that district judges do not have the power to contradict the jury's finding under these circumstances. The panel remanded with instructions that the defendant be resentenced on the premise that the quantity of drugs involved in his crimes was less than 50 grams.

         The panel held that because two witness's hearsay statements did not meet the "minimal indicia of reliability" standard, the district court was not justified in relying on them in determining the sentence. Because absent these statements, there is no evidence that the defendant exercised some control over others involved in the commission of the evidence, the panel held that the district court clearly erred in assessing an organizer enhancement pursuant to U.S.S.G. § 3B1.1(c).

          OPINION

          KOZINSKI, Circuit Judge:

         The jury in defendant's criminal case made a special finding that the quantity of drugs involved was "less than 50 grams." We consider whether the district judge may nevertheless calculate defendant's sentence based on the judge's finding that the quantity involved was far in excess of 50 grams.

         FACTS

         Defendant was convicted of possession of methamphetamine with intent to distribute and conspiracy to possess with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The punishment for both of these crimes is determined by section 841(b), which sets differential punishments, depending on drug type and quantity. If the quantity involved is less than 50 grams or an indeterminate amount, then the maximum sentence is 20 years. § ...


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