United States of America v. Safara Echo Shortman

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAFARA ECHO SHORTMAN,
Defendant-Appellant.
No. 21-30198
D.C. Nos.
1:18-cr-00028-DLC-1
1:18-cr-00028-DLC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Argued and Submitted October 6, 2022
Portland, Oregon
Before: OWENS and MILLER, Circuit Judges, and PREGERSON,** District
Judge. Partial Concurrence and Partial Dissent by Judge MILLER.
Safara Shortman challenges the factual basis for her guilty pleas to
conspiracy to possess with intent to distribute at least 50 grams of actual
methamphetamine, in violation of 21 U.S.C. § 846 (“Count One”), and possession
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
FILED
DEC 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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with intent to distribute at least 50 grams of actual methamphetamine, in violation
of 21 U.S.C. § 841(a)(1) (“Count Two”). As the parties are familiar with the facts,
we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291.
When, as here, “a defendant raises an issue on appeal that was not raised before the
district court, such as the lack of a factual basis for a guilty plea under Rule 11, our
review is limited to plain error.” United States v. Bain, 925 F.3d 1172, 1176 (9th
Cir. 2019). We affirm in part and reverse in part.
1. Shortman challenges the factual basis for her guilty plea to Count
Two on the grounds that the proffered facts—three sales of methamphetamine—
could only support a distribution charge, not a possession with intent to distribute
charge. She cites United States v. Mancuso, 718 F.3d 780, 793 (9th Cir. 2013), for
the proposition that “separate acts of distribution . . . must be charged in separate
counts.” But Mancuso held only that the government may not aggregate multiple,
distinct acts of distribution into one count of distribution. See id. It did not
undermine the government’s discretion to charge conduct that meets the elements
of both distribution and possession with intent to distribute as the latter instead of
the former; indeed, Mancuso itself affirmed the defendant’s conviction for
possession with intent to distribute. See id. at 786-87, 792.
Shortman further argues that the government needed to prove that she
possessed 50 grams of methamphetamine (with intent to distribute it) at one time.

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She did. During one transaction, she sold an informant more than 50 grams of
actual methamphetamine. The district court therefore did not err in accepting the
proffered facts as a basis for Shortman’s plea to Count Two.
2. Shortman challenges the factual basis for her guilty plea to Count One
on many of the same grounds. But her arguments based on Mancuso fail for the
reasons described above.
Shortman separately argues that the factual basis only established a buyer-
seller relationship between her and her source and did not establish a conspiratorial
agreement between her and any other person. We agree.
To prove conspiracy, “the government must show that the buyer and seller
had an agreement to further distribute the drug in question.” United States v. Moe,
781 F.3d 1120, 1124-25 (9th Cir. 2015) (citation omitted). “Under the buyer-seller
rule, ‘mere sales to other individuals do not establish a conspiracy to distribute or
possess with intent to distribute . . . .’” Id. (quoting United States v. Lennick, 18
F.3d 814, 819 n.4 (9th Cir. 1994)). Instead, “there has to be an agreement, not just
surmise or knowledge, between the seller and buyer for the buyer to redistribute.”
United States v. Loveland, 825 F.3d 555, 561 (9th Cir. 2016). “Distinguishing
between a conspiracy and a buyer-seller relationship requires a fact-intensive and
context-dependent inquiry . . . . ” Moe, 781 F.3d at 1125.
The offer of proof established that Shortman had distributed

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methamphetamine, but it did not show any agreement that Shortman had with any
others. Shortman’s counsel raised this issue with the court, but then abandoned the
argument when the government stated that they had “determined that she was
distributing methamphetamine to other persons” and identified her source. Neither
of those facts shows that Shortman had more than a buyer-seller relationship with
any other person. That her counsel accepted them as evidence of a conspiracy
suggests that he—and Shortman—misunderstood the elements of conspiracy and
the buyer-seller rule that he had seemingly invoked.
The court later asked the government whether “the telephone intercepts or
telephone records” and “the tracking device” showed not just “a source, but some
agreement with somebody else to in fact distribute methamphetamine.” The
government responded affirmatively yet provided no facts to support their reply.
The court accepted the conclusory assertion without probing, for instance:
whether the drugs were sold on credit or on consignment; the frequency
of sales; the quantity of drugs involved; the level of trust demonstrated
between buyer and seller, including the use of codes; the length of time
during which sales were ongoing; whether the transactions were
standardized; whether the parties advised each other on the conduct of
the other’s business; whether the buyer assisted the seller by looking
for other customers; and whether the parties agreed to warn each other
of potential threats from competitors or law enforcement.
Id. at 1125-26 (footnotes omitted) (describing factors relevant to determine
existence of a conspiracy to distribute). Even the amount of methamphetamine

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Shortman distributed is, alone and with the record as a whole, plainly insufficient
to prove any agreement to further distribute. See id. at 1126 n.4; see also United
States v. Ramirez, 714 F.3d 1134, 1140 (9th Cir. 2013).
At the plea colloquy, Shortman admitted that she “knowingly distributed
with—well, conspired with somebody else to distribute methamphetamine,” and
had “an agreement with somebody else that [she was] going to distribute [more
than 50 grams of] methamphetamine.” But the inquiry ended there—with a bald
recitation of the elements of the charged crimes.
“The purpose of [the factual basis] requirement is to ensure that the
defendant is not mistaken about whether the conduct he admits to satisfies the
elements of the offense charged.” United States v. Mancinas-Flores, 588 F.3d 677,
682 (9th Cir. 2009). Bare, conclusory statements agreeing with statutory elements
did not suffice to fulfill that purpose here.
Because neither the plea colloquy nor the record as a whole establishes a
sufficient factual basis to show that Shortman’s relationship with her supplier went
beyond buyer-seller, and because the plea colloquy suggests that Shortman did not
understand that a buyer-seller agreement would not satisfy the elements of
conspiracy when she pled, the district court plainly erred in accepting Shortman’s
guilty plea on Count One. This “seriously affect[ed] the fairness, integrity or
public reputation of [the] judicial proceedings.” See United States v. Olano, 507

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U.S. 725, 732 (1993) (setting forth plain error framework).
We affirm as to Count Two. We reverse as to Count One and remand for
resentencing.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

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United States v. Shortman, No. 21-30198
MILLER, Circuit Judge, concurring in part and dissenting in part:
I would affirm as to both counts. At the change-of-plea hearing, the district
court recognized that conspiracy requires more than merely a buyer-seller
relationship, and it asked government counsel to address that issue: “[E]verybody
has a source, but [is there] some agreement with somebody else to in fact distribute
methamphetamine?” Counsel answered in the affirmative, and Shortman said that
she agreed. That answer, coupled with the statements of defense counsel,
established the elements of the offense. It might have been better if the district
court had asked more detailed questions, but our review is for plain error, which
means that Shortman must show an error that was “clear or obvious, rather than
subject to reasonable dispute.” United States v. Marcus, 560 U.S. 258, 262 (2010)
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). In my view, any error
in this case does not satisfy that standard.
FILED
DEC 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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