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July 17, 2016

Ninth Circuit rejects district court's decision to base sentence on drug amount higher than jury's special verdict

A helpful reader made sure I did not overlook the interesting Ninth Circuit panel decision in US v. Pimentel-Lopez, No. 14-30210 (9th Cir. July 15, 2016) (available here), which was handed down on Friday.  Here is how the helpful reader helpfully summarized the decison: "Somewhat unusually, the jury returned a special verdict finding the defendant responsible for less than 50 g of meth. The Circuit Court vacated his sentence after the District Court based the guidelines range on 4.5 kg and gave a stat max sentence of 20 years. An interesting variation on using (or not) acquitted conduct at sentencing, I think." And here are a few paragraphs from the decision:

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 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.”....

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. [CITES]  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....

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.... 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.

July 17, 2016 at 09:02 AM | Permalink


Oh come on! Simple logic might dictate this result but it must dictate the result in those other cases too. There is no functional difference between a jury's explicit finding of an less than a specific amount and a jury acquitting on a greater amount. Our system is binary, guilty or not guilty.

I'm reminded of this old piece of wit.

"In an English court a man named Home was tried for slander in having accused his neighbor of murder. His exact words were: 'Sir Thomas Holt hath taken a cleaver and stricken his cook upon the head, so that one side of the head fell upon one shoulder and the other side upon the other shoulder.' The defendant was acquitted by instruction of the court, the learned judges holding that the words did not charge murder, for they did not affirm the death of the cook, that being only an inference."

Posted by: Daniel | Jul 17, 2016 10:55:33 AM

Witty, but without more, how do we know if the cook wasn't dead already?

Acquittal might be reached for various reasons (including simple nullification) beyond the finding that less than 50 grams was possessed. The jury might determine, e.g., maybe -- not beyond a reasonable doubt -- the person had 60 grams, but they was only sure about 40. The judge then can decide there is on preponderance of evidence proof of that other 20.

Judge cannot do that here -- the jury made a special finding beyond a reasonable doubt that there isn't that much drugs.

Posted by: Joe | Jul 17, 2016 12:02:47 PM

"The jury might determine, e.g., maybe -- not beyond a reasonable doubt -- the person had 60 grams, but they was only sure about 40. The judge then can decide there is on preponderance of evidence proof of that other 20."

I don't think so because the situation you posit is not a situation involving acquitted conduct. The jury not only renders a judgement, they are the finder of fact. I don't think that a judge can find a fact (using any standard) that the jury has explicitly or implicitly rejected as part of a guilty verdict. A guilty verdict by definition means that course of conduct was NOT acquitted. In other words, a judge can reject a jury's legal conclusion--there is nothing novel about that--but a judge cannot reject a jury's version of the facts if he accepts the legal conclusion.

Posted by: Daniel | Jul 17, 2016 12:32:44 PM

I predict an en banc rehearing. If this gets to the Supreme Court, it is overturned for sure. The Supreme Court is not going to let the precious guidelines that they saved with Booker be undermined in this way.

This is not a comment on the legal correctness or incorrectness of the decision.

Posted by: USPO | Jul 19, 2016 1:08:41 AM

If I were a federal prosecutor, I wouldn't want to appeal the decision to SCOTUS and risk it setting national precedent, although I might request en banc review.

Posted by: ohwilleke | Jul 21, 2016 11:34:12 PM

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