FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30210
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00024-SEH-1
JESUS PIMENTEL-LOPEZ,
Defendant-Appellant. ORDER AND
AMENDED OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, Senior District Judge, Presiding
Argued and Submitted October 15, 2015
Seattle, Washington
Filed July 15, 2016
Amended June 1, 2017
Before: Alex Kozinski, William A. Fletcher
and Raymond C. Fisher, Circuit Judges.
Order;
Dissent to Order by Judge Graber;
Opinion by Judge Kozinski
2 UNITED STATES V. PIMENTEL-LOPEZ
SUMMARY*
Criminal Law
The panel filed an order denying a petition for rehearing
en banc and an amended opinion vacating a sentence and
remanding 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 was beside the point because the defendant was not
complaining that the district court raised the maximum
statutory sentence, and that this was not a case where the jury
failed to find a fact under the exacting standard applicable to
criminal cases. The panel explained that this was 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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. PIMENTEL-LOPEZ 3
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
offense, the panel held that the district court clearly erred in
assessing an organizer enhancement pursuant to U.S.S.G.
§ 3B1.1(c).
Dissenting from the denial of rehearing en banc, Judge
Graber, joined by Judges Tallman, Bybee, Callahan, Bea, and
Ikuta, wrote that the panel’s holding regarding the amount of
drugs was wrong both as a matter of logic and as a matter of
Supreme Court law, had far-reaching consequences for the
prosecution of drug crimes in the Ninth Circuit, and
conflicted with the holdings of other circuits. Judge Graber
wrote that the jury found specifically that the government had
proved its case beyond a reasonable doubt with respect to less
than 50 grams of methamphetamine. The sentencing judge,
though, found that the government had proved by a
preponderance of the evidence that the quantity of drugs was
greater than 50 grams and sentenced the defendant
accordingly. Judge Graber wrote that the district judge’s
finding as to drug weight did not contradict the jury’s finding
and was permissible under Apprendi and United States v.
Watts, 519 U.S. 148 (1997) (per curiam).
4 UNITED STATES V. PIMENTEL-LOPEZ
COUNSEL
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; Leif M. Johnson, Acting United
States Attorney; United States Attorney’s Office, Helena,
Montana; for Plaintiff-Appellee.
ORDER
The opinion filed July 15, 2016, and appearing at
828 F.3d 1173, is AMENDED as reflected in the attached
amended opinion. The petition for rehearing en banc is
DENIED. No further petitions for rehearing will be
considered.
GRABER, Circuit Judge, with whom TALLMAN, BYBEE,
CALLAHAN, BEA, and IKUTA, Circuit Judges, join,
dissenting from denial of rehearing en banc:
I respectfully dissent from the denial of rehearing en banc.
The panel held that when a jury finds that the amount of
drugs the government has proved, beyond a reasonable doubt,
is attributable to a defendant falls within a specified range,
the sentencing judge may not find by a preponderance of the
evidence that the amount of drugs attributable to the
defendant is higher than that range. United States v.
Pimentel-Lopez, 828 F.3d 1173, 1176–77 (9th Cir. 2016).
That holding is wrong both as a matter of logic and as a
UNITED STATES V. PIMENTEL-LOPEZ 5
matter of Supreme Court law, it has far-reaching
consequences for the prosecution of drug crimes in our
circuit, and it conflicts with holdings in other circuits. For all
those reasons, we should have reheard this case en banc.
I
A jury convicted Defendant Jesus Pimentel-Lopez of
possessing methamphetamine, with intent to distribute it, and
conspiracy to accomplish the same. The jury found
specifically that the government had proved its case beyond
a reasonable doubt with respect to less than 50 grams of
methamphetamine. The sentencing judge, though, found that
the government had proved by a preponderance of the
evidence that the quantity of drugs was greater than 50 grams
and sentenced Defendant accordingly. The sentence imposed
did not exceed the maximum sentence for the quantity of less
than 50 grams, which the jury had found; rather, the court
imposed the statutory maximum for a quantity of less than
50 grams. Id. at 1175. The panel nonetheless vacated the
sentence on the ground that the jury’s finding as to drug
weight “precluded a contradictory finding by the district
judge during sentencing.” Id. at 1177. In fact, the district
judge’s finding as to drug weight did not contradict the jury’s
finding and was permissible under Apprendi v. New Jersey,
530 U.S. 466 (2000), and United States v. Watts, 519 U.S.
148 (1997) (per curiam).
II
The panel’s opinion first errs by misconstruing what the
jury found. The jury answered the following question on the
verdict form:
6 UNITED STATES V. PIMENTEL-LOPEZ
Having found Jesus Pimentel-Lopez guilty of
the charge . . . we unanimously find beyond a
reasonable doubt the amount of a substance
containing a detectable amount of
methamphetamine attributable to Jesus
Pimentel-Lopez to be:
x Less than 50 grams of a substance
containing a detectable amount of
methamphetamine.
50 grams or more, but less than 500
grams, of a substance containing a
detectable amount of methamphetamine.
500 grams or more of a substance
containing a detectable amount of
methamphetamine.
Pimentel-Lopez, 828 F.3d at 1175. Again and again, the
opinion characterizes the jury’s finding as an “affirmative”
finding, beyond a reasonable doubt, that the amount of
methamphetamine attributable to Defendant’s crimes was less
than 50 grams. Id. at 1176, 1177. In other words, the panel
reads the jury’s special verdict to say, “we find that the drug
quantity was less than 50 grams, and beyond a reasonable
doubt the amount did not exceed 50 grams,” rather than to say
simply, “we find that the government proved beyond a
reasonable doubt that some quantity of drugs was attributable
to the defendant and, of these three options, that quantity falls
into the ‘less than 50 grams’ category.”
To be fair, the precise wording of the verdict form, read
in isolation, does admit the construction that the panel gave
UNITED STATES V. PIMENTEL-LOPEZ 7
it. But we do not read a verdict form, much less a portion of
a verdict form, in isolation, and neither does a jury. A verdict
form must be interpreted in light of the jury instructions and
in the context of the trial as a whole. United States v. Hartz,
458 F.3d 1011, 1022 n.9 (9th Cir. 2006); United States v.
Pineda-Doval, 614 F.3d 1019, 1031 (9th Cir. 2010). Here,
the context was a drug trial in which the government offered
evidence of several drug transactions tied to a conspiracy. In
that context, a finding by the jury that the amount of drugs
attributable to Defendant was less than x grams, with x being
a number smaller than the total quantity of drugs that the
government sought to attribute to Defendant at trial, was a
finding only that the amount of drugs that the government
proved beyond a reasonable doubt to be attributable to
Defendant was less than x grams. It was not a finding of any
kind about amounts greater than x grams. Under the panel’s
reading of the verdict form, though, the jury found that the
government proved beyond a reasonable doubt that the
amount did not exceed x grams—something that the
instructions did not ask the jury to find.
An example will further illustrate the illogic of the panel’s
interpretation. Suppose that the government offered evidence
in this case of two drug transactions, each involving 45 grams
of a substance containing a detectable amount of
methamphetamine. Suppose further that the jury is persuaded
beyond a reasonable doubt that one transaction occurred and
that the amount was attributable to Defendant, but that the
jury is persuaded to a lesser degree as to the second
transaction. Under my reading of the verdict form, the jury
would, as it did here, check the box for less than 50 grams.
But under the panel’s analysis, the jury could not check any
box because it did not (and in this example it could not) find
8 UNITED STATES V. PIMENTEL-LOPEZ
beyond a reasonable doubt that the amount attributable to
Defendant did not exceed 50 grams.
The panel has amended its opinion to include a proposed
verdict form that “capture[s] the view that the government is
now attributing to the jury.” Revised panel op. at 18–19. But
the fact that there is some other formulation that might have
reflected the jury’s factual findings even more clearly says
nothing about how the actual verdict form in this case should
be interpreted. A verdict form such as the one in this case is
best understood to mean that the government proved its case
only with respect to some amount of drugs weighing less than
50 grams. See, e.g., United States v. Young, 609 F.3d 348,
357 (4th Cir. 2010) (“By determining that the evidence
presented at trial established that [the defendant’s] crimes
involved . . . less than five kilograms of cocaine, the jury in
this case effectively acquitted [the defendant] of involvement
with the distribution of more than five kilograms. The district
court was free to consider, as it would with any other
acquitted conduct, whether the government could establish a
higher quantity under a preponderance of the evidence
standard.”).
III
Given what the jury actually found in this case—as
opposed to what the panel erroneously concluded that the jury
found—the district judge’s drug-weight finding was
consistent with the jury’s finding. As the panel’s opinion
acknowledges, at least four other circuits have held that “a
jury’s special-verdict finding that the quantity of drugs
involved in [a] crime is less than a particular amount [does]
not preclude [a] judge from finding a greater amount for
purposes of sentencing.” Pimentel-Lopez, 828 F.3d at 1176.
UNITED STATES V. PIMENTEL-LOPEZ 9
Those cases relied, either explicitly or implicitly, on the
rationale of Watts.1 In Watts, the Supreme Court held that a
jury verdict of acquittal “does not prevent the sentencing
court from considering conduct underlying the acquitted
charge, so long as that conduct has been proved by a
preponderance of the evidence.” 519 U.S. at 157. Here, the
jury was given three ranges: It was asked whether Defendant
was responsible for less than 50 grams; 50 to 500 grams; or
500 grams or more of a substance containing a detectable
amount of methamphetamine. By marking the smallest
option, the jury in effect acquitted Defendant of the greater
charges—that is, the greater amounts that the government had
sought to prove. But, under Watts, the trial judge was
permitted to consider evidence of those greater amounts and
make a higher drug-weight finding by a preponderance of the
evidence.
The panel’s opinion distinguishes Watts and the opinions
of our sister circuits by reasoning that the “rationale [of
Watts] is inapplicable where, as here, we have an affirmative
finding that the amount in question is less than a particular
amount.” Pimentel-Lopez, 828 F.3d at 1177. That being so,
1
See United States v. Webb, 545 F.3d 673, 677 (8th Cir. 2008) (“[A]
district court may impose a sentence based on a drug quantity
determination greater than that found by the jury so long as the sentence
does not exceed the statutory maximum of the convicted offense and the
district court’s calculation is supported by sufficient evidence.”); United
States v. Magallanez, 408 F.3d 672, 683–85 (10th Cir. 2005) (rejecting the
argument that a “district court [i]s required to accept the jury’s special
verdict of drug quantity for purposes of sentencing, rather than calculating
that amount for itself”); United States v. Goodine, 326 F.3d 26, 32–34 (1st
Cir. 2003) (similar); United States v. Smith, 308 F.3d 726, 743–45 (7th
Cir. 2002) (similar). Several other circuits have come to the same
conclusion. See, e.g., United States v. Florez, 447 F.3d 145, 156 (2d Cir.
2006).
10 UNITED STATES V. PIMENTEL-LOPEZ
the panel explains, there can be no “acquittal.” Id. But that
reasoning is flawed, because it rests on the panel’s misreading
of the verdict form.
The panel also distinguishes the decisions of our sister
circuits by noting that those courts “seem to have assumed
that the juries’ findings merely acquitted defendants of
possessing higher quantities of drugs.” Id. In several of
those cases, as in this case, the jury found a drug amount
attributable to the defendant that was “less than” some value.
See, e.g., United States v. Webb, 545 F.3d 673, 677 (8th Cir.
2008) (stating that “the jury found beyond a reasonable doubt
that [the defendants] conspired to distribute between five and
fifty grams of cocaine base,” but “the district court sentenced
the defendants based on its finding that the conspiracy
involved between fifty and 150 grams of cocaine base”).
According to the panel, our sister circuits have been
“assuming”—perhaps erroneously, hints the panel—that such
findings mean one thing, when in fact they mean something
entirely different. Pimentel-Lopez, 828 F.3d at 1177. That is
one possibility. I submit that a more likely possibility is that
our sister circuits have correctly understood the meaning of
the jury findings in the cases before them, and that it is the
panel that erred.
Which brings me to the importance of this case. The
panel takes pains to avoid saying that its decision creates a
circuit split, positing that our sister circuits’ “assumptions”
regarding the meaning of jury drug-weight findings “may
have been warranted on the record before them.” Id. But that
is hard to square with the panel’s reasoning, which suggests
that any jury finding as to drug weight that sets an “upper
boundary” precludes a sentencing judge from finding a drug
weight above that boundary by a preponderance of the
UNITED STATES V. PIMENTEL-LOPEZ 11
evidence. Every circuit to consider the issue has held that a
sentencing judge may find a higher drug amount than the
amount found by the jury, even when the jury’s finding sets
an upper boundary. Given that fact, it is difficult to see how
the panel’s decision does not create a circuit split—one with
this circuit alone on an island.
This case also has serious practical consequences. The
verdict form filled out by the jury was not identical to the one
found in the Ninth Circuit Manual of Model Criminal Jury
Instructions, but it was substantially similar to that form. See
9th Cir. Model Crim. Jury Instruction 9.16. Because many
district courts use the model instructions or some variation
thereof, the panel’s opinion casts doubt on a large number of
sentences in drug cases. The panel’s opinion invites a deluge
of 28 U.S.C. § 2255 petitions to “correct” sentences that were
correct to begin with.
The panel’s opinion represents an unfortunate misstep,
and I regret our decision not to correct that misstep by
rehearing this case en banc.
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.
12 UNITED STATES V. PIMENTEL-LOPEZ
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. § 841(b)(1)(C). The statute sets higher minimum and
maximum sentences for larger drug quantities.
§ 841(b)(1)(A)–(B).
With the consent of both parties, the court gave the jury
a verdict form, which it filled out as follows:
Having found Jesus Pimentel-Lopez guilty of
the charge . . . we unanimously find beyond a
reasonable doubt the amount of a substance
containing a detectable amount of
methamphetamine attributable to Jesus
Pimentel-Lopez to be:
x Less than 50 grams of a substance
containing a detectable amount of
methamphetamine.
50 grams or more, but less than 500
grams, of a substance containing a
detectable amount of
methamphetamine.
UNITED STATES V. PIMENTEL-LOPEZ 13
500 grams or more of a substance
containing a detectable amount of
methamphetamine.
At sentencing, the district judge found that the actual
quantity attributable to defendant’s crimes was 4.536 kg,
which yielded a Sentencing Guidelines range of 235 to 293
months.1 The judge then sentenced defendant to 240
months—the statutory maximum sentence for a quantity of
less than 50 grams. § 841(b)(1)(C). Had the court been
bound by the jury’s determination that the quantity
attributable to Pimentel-Lopez was less than 50 grams, the
sentencing range would have been 63–78 months.2 The
court’s 240-month sentence would then have represented a
substantial upward departure.
ANALYSIS
I
The principal question presented is whether the district
judge was entitled to make a drug quantity finding in excess
of that found by the jury in its special verdict. The district
1
Under the then-applicable Sentencing Guidelines section 2D1.1(c) the
offense level for possessing at least 1.5 kg but less than 5 kg of
methamphetamine was 34. The court also assessed a two-level
enhancement under Guidelines section 3B1.1(b) upon finding that
Pimentel-Lopez was an organizer of the conspiracy. The corresponding
sentencing range for a net offense level of 36 and a criminal history
category of III was 235 to 293 months. See U.S.S.G., ch. 5, pt. A (Nov.
2013).
2
Assuming a level 24 offense under section 2D1.1(c), a criminal history
category of III and no organizer enhancement. See U.S.S.G., ch. 5, pt. A.
14 UNITED STATES V. PIMENTEL-LOPEZ
court believed it was entitled to do so because “[t]here is no
increase in the statutory maximum sentence beyond the 20
years or 240 months that is charged in the [i]ndictment.”
In reaching its conclusion, the district court relied on
Apprendi v. New Jersey, 530 U.S. 466 (2000), and its
progeny, which leave it up to the district judge to find any
facts bearing on sentencing, other than those that would
increase the statutory sentencing range. See, e.g., Alleyne v.
United States, 133 S. Ct. 2151, 2163 (2013); Apprendi,
530 U.S. at 481. But the Apprendi line of cases is beside the
point, because defendant is not complaining that the district
court raised the maximum statutory sentence. Rather, he
argues that the court’s finding that the drug quantity found
was more than 50 grams contradicts the jury’s special finding
that the drug quantity was less than 50 grams. The jury found
“beyond a reasonable doubt [that] the amount of
[methamphetamine] attributable to Jesus Pimentel-Lopez [is]
. . . [l]ess than 50 grams.” This is not a case where the jury
failed to find a fact under the exacting standard applicable to
criminal cases. See, e.g., United States v. Watts, 519 U.S.
148, 157 (1997) (per curiam). Where this happens, the
district judge is free to find the same fact under a less
stringent standard of proof. Id. Rather, what we have here is
a case where the jury made an affirmative finding, under the
highest standard of proof known to our law, that the amount
of methamphetamine attributable to defendant is less than 50
grams. The district court cannot attribute more than that
amount to defendant without contradicting the jury on a fact
it found as a result of its deliberations. District judges have
many powers, but contradicting juries as to findings of facts
they have been asked to make is not among them.
UNITED STATES V. PIMENTEL-LOPEZ 15
In reaching the contrary conclusion, the district judge
overlooked our caselaw on point. In Mitchell v. Prunty,
107 F.3d 1337, 1339 n.2 (9th Cir. 1997), overruled on other
grounds by Santamaria v. Horsley, 133 F.3d 1242, 1248 (9th
Cir. 1998) (en banc), we noted as follows: “Special findings
. . . are dispositive of the questions put to the jury. Having
agreed to the questions, the government cannot now ask us to
ignore the answers; to do so would be a clear violation of
petitioner’s Sixth Amendment rights.”
The precise issue presented in Mitchell differed slightly
from that presented here, but the difference actually makes
ours an easier case. In Mitchell we considered whether there
was sufficient evidence to convict petitioner of murder when
the only evidence of his involvement was one witness’s
testimony that he drove the car that ran over the victim’s
body. Id. at 1342. We concluded that there was insufficient
evidence to support the verdict because the jury had
elsewhere made a special finding that petitioner “was not the
driver of the car which drove over” the victim. Id.
In its petition for rehearing, the state asked us to ignore
the special finding as a case of inconsistent verdicts. Id. at
1339 n.2. We treated the special finding as binding even on
the jury itself. Id. The special finding must also be binding
on the parties and the court.
In our case, the jury was asked to find the upper limit of
the quantity of illegal drugs involved in Pimentel-Lopez’s
crimes, and it did just that: “[T]he amount of
[methamphetamine] attributable to Jesus Pimentel-Lopez [is]
. . . [l]ess than 50 grams.” This was not a gratuitous finding
added by the jury of its own accord as in Floyd v. Laws,
929 F.2d 1390, 1397 (9th Cir. 1991). The parties presented
16 UNITED STATES V. PIMENTEL-LOPEZ
evidence on point and the jury was instructed that this was a
permissible finding. In such circumstances, the finding is
binding, no matter how inconvenient it may be in subsequent
proceedings.
Some of our sister circuits seem to have held that a jury’s
special-verdict finding that the quantity of drugs involved in
the crime is less than a particular amount did not preclude the
judge from finding a greater quantity for purposes of
sentencing. See United States v. Webb, 545 F.3d 673, 677
(8th Cir. 2008); United States v. Magallanez, 408 F.3d 672,
685 (10th Cir. 2005); United States v. Goodine, 326 F.3d 26,
33–34 (1st Cir. 2003); United States v. Smith, 308 F.3d 726,
745–46 (7th Cir. 2002). But those cases did not directly
address the argument raised by Pimentel-Lopez—that the
affirmative finding by the jury that the quantity of drugs
involved was less than a specific amount precluded a
contradictory finding by the district judge during sentencing.
All four cases held that the district court’s sentencing did
not violate the Apprendi line of cases. But, as explained
above, Apprendi has no bearing on our analysis. In addition,
the other circuits addressed the drug quantity finding only in
passing, while emphasizing the less demanding
preponderance-of-the-evidence standard governing judicial
factfinding at sentencing. See Webb, 545 F.3d at 676–77;
Smith, 308 F.3d at 745–46. They therefore implicitly relied
on the holding of Watts to the effect that “a jury’s verdict of
acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long
as that conduct has been proved by a preponderance of the
evidence.” 519 U.S. at 157. The rationale of Watts is that
“[a]n acquittal can only be an acknowledgment that the
government failed to prove an essential element of the
UNITED STATES V. PIMENTEL-LOPEZ 17
offense beyond a reasonable doubt.” Id. at 155 (quoting
United States v. Putra, 78 F.3d 1386, 1394 (9th Cir. 1996)
(Wallace, C.J., dissenting)). This rationale is inapplicable
where, as here, we have an affirmative finding that the
amount in question is less than a particular amount. Or, to
put it differently, there is no inconsistency between a jury’s
acquittal as to a particular fact that had to be proved beyond
a reasonable doubt and a later finding that the same fact is
proved by a preponderance of the evidence. But there is an
inconsistency between a jury’s finding that the amount is less
than 50 grams and a later finding by the judge that the amount
is more than 50 grams.
Some of our sister circuits seem to have assumed that the
juries’ findings merely acquitted defendants of possessing
higher quantities of drugs, and that may have been warranted
on the record before them. See, e.g., Magallanez, 408 F.3d at
682 (“When we review a verdict where the jury did not find
a specific amount of drugs attributable to the defendant, but
a range, we only know that the jury found unanimously the
amount at the bottom of the range.”). Here, by contrast, the
record is clear that the jury didn’t merely acquit defendant of
possessing 50 grams or more of methamphetamine; it made
an affirmative finding “beyond a reasonable doubt” that the
amount attributable to defendant was “[l]ess than 50 grams.”
Our own caselaw, and simple logic, precludes us from
vouchsafing sentencing judges the power to make
contradictory findings under these circumstances.
Our conclusion does raise a fair question: How is it
possible to punish a defendant convicted of crimes involving
less than 50 grams to the full statutory term of 240 months,
when the Sentencing Guidelines cap the term available when
the drug quantity involved is less than 50 grams at 125
18 UNITED STATES V. PIMENTEL-LOPEZ
months? In other words, does a jury’s finding that the
quantity of drugs falls in the 0 to 50 range always preclude a
district judge from punishing the defendant for quantities in
excess of 50 grams? The judge may, of course, depart
upward from the sentencing range generated by the jury’s
findings. Also, where the jury makes no finding as to
quantity or finds an unspecified amount, there would be no
inconsistency between the verdict and any quantity that the
judge finds during sentencing. And any jury finding that does
not set an upper boundary would leave the district court free
to find a greater quantity in determining the sentencing range.
In our case, the government proposed the verdict form
that set both a lower and an upper boundary for the amount of
drugs involved. Having proposed the language, the
government now urges us to read the verdict form as
“acquitt[ing] [Pimentel-Lopez] on the 500-gram amount,”
with which he was initially charged. But none of the choices
offered by the verdict form were capable of capturing that
view. That may have been a blunder, but the jury answered
the questions it was asked and so the die is cast: The
government cannot disavow the finding that the jury makes
as a result. 107 F.3d at 1339 n.2.
A different verdict form certainly could have captured the
view that the government is now attributing to the jury:
1. We, the Jury, unanimously find beyond a
reasonable doubt the Defendant, Jesus
Pimentel-Lopez:
NOT GUILTY ____
GUILTY ____
UNITED STATES V. PIMENTEL-LOPEZ 19
of conspiracy to possess controlled substances
with the intent to distribute, as charged in the
Indictment.
If you find Jesus Pimentel-Lopez not guilty,
do not answer Question 1a. If you find Jesus
Pimentel-Lopez guilty, then answer Question
1a.
1a. Having found Jesus Pimentel-Lopez
guilty of the charge, do you also unanimously
find that the government proved beyond a
reasonable doubt that the amount of controlled
substance attributable to Jesus Pimentel-
Lopez was:
50 grams or more of a mixture or substance
containing a detectable amount of
methamphetamine? Yes ____ No ____
500 grams or more of a mixture or substance
containing a detectable amount of
methamphetamine? Yes ____ No ____
See 21 U.S.C. § 841(a), (b)(1)(A)(viii), (b)(1)(B)(viii).
If the district court had presented this verdict form and the
jury had answered “Guilty” to the first question and “No” to
both sentencing questions, that would mean that the
government had proven beyond a reasonable doubt some
measurable amount of drug in the 0 to 50 gram range. The
government would then have been free to prove more than
50 grams at sentencing. Nothing prevented the government
from proffering such a form. But, having proposed a form
20 UNITED STATES V. PIMENTEL-LOPEZ
that required the jury to find that the drug quantity was less
than 50 grams, the government locked itself out of the
possibility of proving more than 50 grams at sentencing. It
can easily avoid this pitfall in future cases.
That the verdict form used in this case was similar to our
circuit’s model verdict form is of no consequence. Model
instructions and forms are not authoritative; they merely
reflect the case law in our circuit as the Ninth Circuit Jury
Instructions Committee understands it. Indeed, this
committee is constantly revising jury instructions in response
to our opinions. See, e.g., Ninth Circuit Jury Instructions
Committee, Manual of Model Criminal Jury Instructions 137,
222, 225 (2010) (discussing changes in the model jury
instructions prompted by our opinions); see also United
States v. Acosta-Sierra, 690 F.3d 1111, 1118 & n.3 (9th Cir.
2012) (noting that a model jury instruction was revised to
accurately reflect Ninth Circuit law); United States v.
Thongsy, 577 F.3d 1036, 1043 n.5 (9th Cir. 2009) (holding
that a model jury instruction “should be revised to clarify
[that] there are two ways to prove an offense under
[18 U.S.C.] § 924(c)”). It would stand the model jury
instruction process on its head to base our analysis on the
model jury instructions.
Going forward, the Jury Instructions Committee may well
revise the model verdict form for determining the amount of
controlled substance for § 841(b)(1) purposes, as they
frequently do. But our review today must be based on the
verdict form that was actually used in this case. Using this
verdict form, the jury found that the amount of controlled
substance “attributable to Jesus Pimentel-Lopez [was] . . .
[l]ess than 50 grams of a substance containing a detectable
amount of methamphetamine.” Despite this finding, the
UNITED STATES V. PIMENTEL-LOPEZ 21
district court enhanced defendant’s sentence based on a
contradictory finding that more than 50 grams of a controlled
substance were involved in defendant’s crimes. Because the
district court may not contradict an affirmative finding by the
jury, we must vacate the sentence and remand with
instructions that defendant be resentenced on the premise that
his crimes involved less than 50 grams of drugs.
II
The district court also applied a two-level enhancement
under Guidelines section 3B1.1(c) upon finding that
Pimentel-Lopez directed the behavior of his co-conspirators.
Under section 3B1.1(c), “[i]f the defendant was an organizer,
leader, manager, or supervisor in any criminal activity,”
courts are instructed to increase a defendant’s offense by two
levels. The application notes to section 3B1.1 clarify that
“[t]o qualify for an adjustment . . . the defendant must have”
either “been the organizer, leader, manager, or supervisor of
one or more other participants” or must have “exercised
management responsibility over the property, assets, or
activities of a criminal organization.” U.S.S.G. § 3B1.1 n.2.
“A court may impose this enhancement if there is
evidence that the defendant exercised some control over
others involved in the commission of the offense or was
responsible for organizing others for the purpose of carrying
out the crime.” United States v. Whitney, 673 F.3d 965, 975
(9th Cir. 2012) (internal quotation marks omitted). But “even
a defendant with an important role in an offense cannot
receive an enhancement unless there is also a showing that
the defendant had control over others.” Id. (internal quotation
marks omitted).
22 UNITED STATES V. PIMENTEL-LOPEZ
The government introduced scant evidence that Pimentel-
Lopez directed his co-conspirators. During Pimentel-Lopez’s
sentencing hearing, an agent testified that Jesus Elizondo—a
co-conspirator who didn’t testify—said that Pimentel-Lopez
directed Elizondo’s fiancée, Heather Mallo, and Mallo’s
sister, Elizabeth Gardiner, to rent a house “to be used . . . to
distribute drugs.” Mallo corroborated this allegation during
a pre-trial police interview.3 But when Mallo and Gardiner
testified at Pimentel-Lopez’s trial, neither mentioned that he
directed them to rent a residence. Moreover, Gardiner
testified that she couldn’t even communicate with Pimentel-
Lopez because she didn’t speak Spanish. During an interview
with the investigating agents and before entering his guilty
plea, Elizondo declared that Pimentel-Lopez directed two
individuals to deposit the proceeds of the drug sales into a
bank account. But this statement was only corroborated by
Mallo’s pre-trial statements to the police, not by her trial
testimony.
“Generally, hearsay evidence . . . may be used in
sentencing,” but “we require that ‘some minimal indicia of
reliability accompany a hearsay statement.’” United States v.
Huckins, 53 F.3d 276, 279 (9th Cir. 1995) (quoting United
States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993)).
Elizondo’s “statements were not made under oath, nor at trial
where he could be cross-examined.” Id. Furthermore, “a
codefendant’s confession inculpating the accused is
inherently unreliable.” Lee v. Illinois, 476 U.S. 530, 546
(1986). This “time-honored teaching” is equally applicable
in the sentencing as in the conviction context. See Huckins,
53 F.3d at 279 (quoting Lee, 476 U.S. at 546).
3
To the extent that we refer here to facts contained exclusively in the
presentence report, we pro tanto lift the order sealing that document.
UNITED STATES V. PIMENTEL-LOPEZ 23
“[E]xternal consistency” may demonstrate “the reliability
of hearsay statements by co-defendants.” United States v.
Berry, 258 F.3d 971, 976 (9th Cir. 2001). “Specifically,
hearsay statements by co-defendants that are consistent with
each other may be deemed sufficiently reliable even if such
statements are self-serving and contrary to the testimony of
the defendant.” Id. at 976–77. Here, Elizondo’s statements
were only corroborated by his fiancée, and even then only out
of court. Gardiner’s testimony that she couldn’t
communicate with Pimentel-Lopez casts further doubt on
Elizondo’s and Mallo’s hearsay statements. In light of these
facts, Elizondo’s hearsay statements have not been
“sufficiently corroborated . . . to provide the minimal indicia
of reliability necessary to qualify the statements for
consideration by the district court during sentencing.” Id. at
977.
Because Elizondo’s and Mallo’s hearsay statements do
not meet our “minimal indicia of reliability” standard, the
district court was not justified in relying on them in
determining Pimentel-Lopez’s sentence. Absent these
statements, there is no evidence indicating that Pimentel-
Lopez “exercised some control over others involved in the
commission of the offense.” United States v. Yi, 704 F.3d
800, 807 (9th Cir. 2013). It was therefore clearly erroneous
to assess the organizer enhancement. See id.
* * *
We VACATE Pimentel-Lopez’s sentence and REMAND
for resentencing.