and Submitted March 8, 2016
Submission Vacated September 27, 2016
Resubmitted September 6, 2017 Pasadena, California
from the United States District Court for the Central
District of California D.C. No. 2:10-cr-00567-AHM-4,
2:10-cr-00567-AHM-2, 2:10-cr-00567-AHM-1, 2:10-cr-00567-AHM-3
Alvin Howard Matz, District Judge, Presiding.
Dean Steward (argued), San Clemente, California, for
Defendant-Appellant Cesar Munoz Gonzalez.
Benjamin L. Coleman (argued), Coleman Balogh & Scott LLP,
San Diego, California, for Defendant-Appellant Rafael Munoz
Michael J. Treman (argued), Santa Barbara, California, for
Defendant-Appellant Abraham Aldana. Karen L. Landau, Oakland,
California, for Defendant-Appellant Michael Anthony Torres.
E. Jenkins (argued) and Jennifer L. Williams, Assistant
United States Attorneys; Robert E. Dugdale, Chief, Criminal
Division; United States Attorney's Office, Los Angeles,
California; for Plaintiff-Appellee.
Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
Judges and Frederic Block, [*] Senior District Judge.
panel affirmed four defendants' convictions and sentences
for racketeering, drug trafficking conspiracy, and related
offenses involving the Puente-13 street gang.
panel held that the district court's jury instruction for
determining drug quantities under 21 U.S.C. § 841(b),
which required the jury to determine drug quantities that
were reasonably foreseeable to each defendant in connection
with his criminal activity, was not reversible error, even
though the jury was not required to find that the drug
quantities related to violations that were part of a jointly
undertaken criminal activity. In a separate opinion that
states the majority opinion as to this issue, Judge Clifton
wrote that the reasoning of United States v.
Banuelos, 322 F.3d 700 (9th Cir. 2003), in favor of
employing a disjunctive formulation for assigning an
individual conspirator's responsibility for drug
quantity, has since been undermined. Judge Clifton wrote that
en banc review will ultimately be necessary to sort out the
inconsistency in the case law, but that the questions need
not be resolved in this case because plain error review
applies here, and any error in the jury instructions did not
affect the defendants' substantial rights.
panel held that the district court did not err in denying
defendant Abraham Aldana's request for a multiple
conspiracies instruction, where there was no evidence upon
which the jury could rationally sustain the defense that he
was a member only of separate conspiracies and not of the
panel rejected the defendants' argument that because
their state convictions overlap temporally with their
convictions in this case, the state convictions cannot be
considered "prior" convictions that trigger
sentencing enhancements under § 841(b). The panel held
that because the jury verdict necessarily determined that the
defendants' conspiracy continued past the dates when
their state convictions became final, the district court did
not err in relying on the defendants' prior drug
convictions to impose the mandatory minimum penalties under
panel rejected the defendants' argument that 21 U.S.C.
§§ 841(b) and 851 violate the Sixth Amendment as
interpreted in Apprendi v. New Jersey, 530 U.S. 466
(2000), and Alleyne v. United States, 133 S.Ct. 2151
(2013). The panel explained that by permitting a court to
find "the fact of a prior conviction, "
the Supreme Court in Apprendi empowered a court to
determine that the conviction was prior to the case before
portion of her opinion that constitutes a special concurrence
in Judge Clifton's opinion, Judge Ikuta wrote that the
panel remains bound by Banuelos, and that the
district court therefore did not err in only requiring the
jury to determine what quantities of drugs were reasonably
foreseeable to each defendant in connection with his criminal
Munoz Gonzalez, Cesar Munoz Gonzalez, Abraham Aldana, and
Michael Torres appeal their convictions and sentences for
racketeering, drug trafficking conspiracy, and related
offenses. We hold that the district court's jury
instruction for determining drug quantities under 21 U.S.C.
§ 841(b) was not reversible error, even though the jury
was not required to find that the drug quantities related to
violations that were part of a jointly undertaken criminal
activity. Nor did the district court err in denying a
defendant's request for an instruction on multiple
conspiracies where the evidence did not show that the
defendant was involved only in a separate, unrelated
conspiracy. We also hold that the district court did not err
in concluding that the defendants had state convictions that
were prior to the conviction in this case for purposes of the
§ 841(b) mandatory minimum. We therefore affirm the
defendants' convictions and sentences.
in 1955 in the city of La Puente in Southern California, the
Puente-13 street gang is a sophisticated, vertically
integrated operation involved in the manufacture,
distribution, and sale of narcotics. By 2010, the gang had
about 600 documented members who were organized into a number
of separate divisions and maintained a large network of stash
houses. Though the drug enterprise was carried out on a large
scale, Puente-13's business model was simple: the gang
carved out a territorial monopoly on drug distribution, then
collected the revenues provided by that monopoly. Drug
dealers within Puente-13's territory were expected to
obtain their supply from the gang, and each was required to
pay the gang a portion of their revenues. Sellers who
obtained narcotics from other sources, were associated with
other gangs, or refused to pay "taxes" were
attacked or excluded from Puente-13's territory.
Puente-13's business therefore relied on its ability to
maintain monopoly control over its territory, meaning that
its efforts to exclude or tax rival gangs were as important
to its success as actual drug sales. Accordingly, Puente-13
used a number of means to enforce its territorial monopoly,
including robberies, prison violence, assaults, kidnappings,
murder, attempted murder, and drive-by shootings. Puente-13
also worked to protect its operations from law enforcement,
engaging in routine counter-surveillance against law
is subordinate to the Mexican Mafia gang, a prison-based gang
that controls the sureño gangs. As a subsidiary,
Puente-13 remits a portion of revenues from illegal
activities, especially drug proceeds, to the Mexican Mafia.
Puente-13 members also act as the Mexican Mafia's agents,
serving as street-level enforcers and collecting taxes from
outsiders who sell drugs within Puente-13 territory.
in the early 2000s, the Los Angeles County Sheriff's
Department conducted a multi-year investigation of Puente-13.
That investigation identified defendants Rafael Munoz
Gonzalez, Cesar Munoz Gonzalez, Abraham Aldana, and Michael
Torres as key figures in the gang. Following the conclusion
of the investigation, the government presented its evidence
to three separate grand juries, which resulted in a final
eight-count criminal indictment.
trial, the government filed a sentencing information under 21
U.S.C. § 851 alleging that each of the four defendants
had prior felony drug convictions subjecting them to
mandatory minimum sentences. When the government files an
§ 851 information, defendants may be subject to an
increased statutory minimum sentence under 21 U.S.C. §
841, which sets terms of imprisonment based on the drug
quantities and prior convictions of each defendant. 21 U.S.C.
§ 841(b). The first § 851 information alleged that
Cesar Munoz Gonzalez had two prior drug convictions: a 1995
conviction for Possession of Cocaine Base for Sale under
section 11351.5 of the California Health and Safety Code, and
a 2000 conviction for Possession for Sale of Methamphetamine
under section 11378 of the California Health and Safety Code.
It also alleged that Aldana had one prior drug conviction, a
2002 conviction for Possession for Sale of Methamphetamine
under section 11378 of the California Health and Safety Code.
Finally, the first § 851 information alleged that Torres
had a 1994 conviction for Possession of Cocaine under section
11350(a) of the California Health and Safety Code. The second
§ 851 information addressed Rafael Munoz Gonzalez's
prior offenses, alleging that he had a 1989 conviction for
Possession with Intent to Distribute Crack Cocaine under 21
U.S.C. § 841(a)(1),  and a 2000 conviction for Possession of
a Controlled Substance for Sale under section 11378 of the
California Health and Safety Code.
the course of a 23-day trial, the government presented
evidence showing the following. Rafael Munoz Gonzalez was the
leader of Puente-13, as well as an important member of the
Mexican Mafia. Rafael Munoz Gonzalez set the agenda for
Puente-13 even when he was in prison, issuing orders to other
gang members and receiving revenues from drug sales. As
leader, he pursued an aggressive expansion strategy in order
to enlarge the gang's business by expanding its
territorial control. To further this strategy, Rafael Munoz
Gonzalez ordered members to extort money from all drug
dealers within the gang's territory. He also ordered gang
members to purchase their methamphetamine exclusively from
his brother, Cesar Munoz Gonzalez.
Munoz Gonzalez was the nominal leader of Puente-13 while
Rafael was in prison. Like his brother, Cesar Munoz Gonzalez
worked to subdue rivals, urging Puente-13 members to tax all
drug dealers within their territory and to enforce taxation
through extortion, assault, and murder. Cesar Munoz
Gonzalez's primary responsibility was managing the
production and sale of methamphetamine; he was known within
the gang as a high-quantity methamphetamine dealer. In
connection with his production responsibilities, Cesar Munoz
Gonzalez shared a proprietary method for producing a superior
and more marketable form of methamphetamine with a few
trusted cohorts. Cesar Munoz Gonzalez used a stash house on
Fourth Avenue in La Puente for production and storage of the
product, as well as a center for methamphetamine
Aldana was a longtime Puente-13 member and one of Rafael
Munoz Gonzalez's top lieutenants. Aldana's
involvement in Puente-13 was twofold. With respect to the
drug production and distribution aspects of the business,
Aldana personally purchased methamphetamine from a Puente-13
dealer and sold methamphetamine within Puente-13's
territory. Between 1998 and 2002, Aldana purchased
methamphetamine five times from Andy Villa, then a Puente 13
member, and resold it from his own house. In 2008, Steven
Nunez, another Puente-13 member, sold Aldana methamphetamine
five times after Aldana was released from prison. Aldana, in
turn, sold methamphetamine "four or five times a
week." In December 2008, a law enforcement search of
Aldana's residence uncovered 3.17 grams of
respect to other aspects of the business, Aldana served as
Rafael Munoz Gonzalez's representative and enforcer.
Among other acts, Aldana negotiated with the Mexican Mafia
for additional resources to assist Rafael Munoz
Gonzalez's efforts to organize attacks against rival gang
members both inside and outside of prison. Aldana also
personally extorted drug payments from rival gang members,
collected taxes from Puente-13 members, and threatened
violence if the targets failed to comply. On occasion, Aldana
took cars from drug dealers in lieu of tax payments.
Torres was an associate of Puente-13 and was involved
primarily in transporting and delivering drugs and drug
proceeds. Torres resided at Cesar Munoz Gonzalez's Fourth
Avenue stash house and helped with sales and tax collection.
While living at the stash house, Torres sold at least 30
pounds of methamphetamine and helped manufacture
methamphetamine on numerous occasions. Torres also stored a
firearm in his room at the stash house in order to protect
the gang's operations.
conclusion of trial, the jury convicted the defendants on all
counts. The district court then held individual sentencing
hearings to consider the government's § 851
informations. After determining that Rafael Munoz Gonzalez
and Cesar Munoz Gonzalez each had two prior drug offenses as
alleged in the § 851 informations, the district court
sentenced both to the mandatory minimum sentence of life
imprisonment. The court determined that Aldana had one prior
drug conviction and was subject to the mandatory minimum
sentence of 20 years. It sentenced Aldana to 324 months.
Finally, the court determined that Torres was subject to the
same 20-year mandatory minimum sentence because of one prior
drug conviction and to an additional five-year mandatory
minimum sentence because of his conviction under 18 U.S.C.
§ 924. The court sentenced Torres to 300 months.
appeal, the defendants challenge the jury instructions for
Counts Seven and Eight and the district court's
determination that the defendants were subject to mandatory
minimum sentences under 21 U.S.C. § 841(b). We have