United States of America v. Juan Manuel Mendiola

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN MANUEL MENDIOLA,
Defendant - Appellant.
No. 10-30268
D.C. No. 3:08-cr-00119-JKS-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Senior District Judge, Presiding
Argued and Submitted May 22, 2013
Anchorage, Alaska
Before: TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.
Juan Mendiola was convicted of drug trafficking conspiracy, drug
possession, and related firearms offenses, including possession of machine guns in
furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). He appeals his
convictions on two firearm possession counts, and the two resulting mandatory
FILED
JUN 05 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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minimum sentences he received. We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), and we affirm.
The existence of a prior conviction is a sentencing factor, rather than an
element of the crime, and need not be charged in the indictment or found by the
jury—even if it increases the sentence that otherwise would be available for the
charged offense. Almendarez-Torres v. United States, 523 U.S. 224, 235, 241
(1998). Thus, the district court did not err when it sentenced Mendiola to 25 years
for his second conviction under 18 U.S.C. § 924(c) even though the fact of the
prior conviction was not charged in the indictment or found by the jury. Nor did
the district court err by imposing the enhanced penalty for a second or subsequent
§ 924(c) conviction where both convictions were obtained in the same prosecution.
See Deal v. United States, 508 U.S. 129, 135 (1993); United States v. Neal, 976
F.2d 601, 602 (9th Cir. 1992).
Substantial mandatory minimum sentences for violations of § 924(c) where
the convictions are based on a Pinkerton v. United States, 328 U.S. 640 (1946),
theory of vicarious liability do not amount to cruel and unusual punishment in
violation of the Eighth Amendment. See United States v. Hungerford, 465 F.3d
1113, 1118 (9th 2006). Mendiola’s 30-year sentence for possessing a machine gun
in furtherance of drug trafficking is therefore not cruel and unusual, even if the

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conviction was based entirely on a Pinkerton theory of liability. Furthermore,
sufficient direct evidence was presented at trial to support Mendiola’s conviction
for possession of a machine gun.
AFFIRMED.

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United States v. Mendiola, No. 10-30268
TASHIMA, Circuit Judge, concurring in the judgment:
Defendant Juan Mendiola was convicted of a drug trafficking conspiracy
and related firearms offenses. For these crimes, primarily because of the way in
which federal firearms sentences are structured and the statutory minimum
sentences they impose, defendant was sentenced to a 65-year term of
imprisonment. At sentencing, the experienced District Judge noted that if he “had
greater discretion, [he] would impose a sentence far less than 65 years.” In his
considered opinion, “a sentence of 65 years [was not] necessary to address the
sentencing goals of [18 U.S.C. §] 3553.” I agree. A sentence of 65 years’
imprisonment, for these crimes, on this record, is way beyond the pale of an
acceptable fair, just, and reasonable sentence in a civilized, humane society. See
United States v. Hungerford, 465 F.3d 1113, 1118-22 (9th Cir. 2006 (Reinhardt, J.,
concurring in the judgment). Further, were this sentence subject to review for
substantive reasonableness, absent the consecutive and increasingly harsh statutory
minima, I doubt that it would survive unscathed. See United States v. Ressam, 679
F.3d 1069, 1086-88 (9th Cir. 2012) (en banc).
Nonetheless, I am compelled to concur in the judgment because the sentence
and the majority’s affirmance of that sentence are solidly grounded in the statutory
mandate to impose consecutive minimum sentences, as interpreted by the Supreme
FILED
JUN 05 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Court and this Circuit. I thus concur in the judgment.

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