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United States v. Torres

United States Court of Appeals, Ninth Circuit

September 6, 2017

United States of America, Plaintiff-Appellee,
v.
Michael Anthony Torres, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Cesar Munoz Gonzalez, AKA Blanco, AKA Cesar Gonzales, AKA Ricardo Martines, AKA Ricardo O. Martinez, AKA Ricardo Martinez-Osorio, AKA Osorio Ricardo, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Rafael Munoz Gonzalez, AKA "C", AKA Cisco, AKA Homeboy, AKA Big Homie, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Abraham Aldana, AKA Listo, Defendant-Appellant.

          Argued and Submitted March 8, 2016

          Submission Vacated September 27, 2016

          Resubmitted September 6, 2017 Pasadena, California

         Appeal 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.

          H. 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 Gonzalez.

          Michael J. Treman (argued), Santa Barbara, California, for Defendant-Appellant Abraham Aldana. Karen L. Landau, Oakland, California, for Defendant-Appellant Michael Anthony Torres.

          Mack 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.

         SUMMARY [**]

         Criminal Law

         The panel affirmed four defendants' convictions and sentences for racketeering, drug trafficking conspiracy, and related offenses involving the Puente-13 street gang.

         The 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.

         The 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 Puente-13 conspiracy.

         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 § 841(b).

         The 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 the court.

         In the 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 activity.

          OPINION

          IKUTA, Circuit Judge.[1]:

         Rafael 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.[2]

         I

         Founded 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 enforcement officers.

         Puente-13 is subordinate to the Mexican Mafia gang, a prison-based gang that controls the sureño gangs.[3] 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.

         Beginning 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.[4]

         Before trial, the government filed a sentencing information under 21 U.S.C. § 851[5] 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), [6] and a 2000 conviction for Possession of a Controlled Substance for Sale under section 11378 of the California Health and Safety Code.

         Over 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.

         Cesar 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 distribution.

         Abraham 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 methamphetamine.

         With 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.

         Michael 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.

         At the 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.

         II

         On 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 ...


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