USA v. Tejeda et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States v. Alex Jose Tejeda
Case No. 3:15-cr-00066-TMB
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter comes before the Court on Defendant Alex Jose Tejeda’s “Motion for Ruling that the
Penalties in 21 U.S.C. § 841(b)(1)(C) Apply as a Matter of Law to the Conspiracy Conviction
(Count 1)” ( “Motion”).1 The Government responded in opposition (“Opposition”) and Defendant
filed a Reply.2 The Motion is fully-briefed and ripe for resolution. For the reasons discussed below,
the Motion is DENIED.
On January 8, 2016, a jury found Defendant guilty of Count 1: Conspiracy to Distribute and
Possession with Intent to Distribute Methamphetamine, Heroin, and Cocaine, in violation of 21
U.S.C. §§ 864, 841(a)(1), (b)(1)(A), and (b)(1)(C), among four other drug charges.3 Specifically,
as to the Conspiracy charge, the jury found that Defendant “conspired to distribute and possess
with intent to distribute the controlled substance below, which was either known to him or
reasonably foreseeable to him” and selected “[a] mixture and/or substance with a detectible amount
of Methamphetamine . . . [w]eighing at least 50 grams but less than 500 grams.”4
In the Motion, Defendant argues that the special verdict finding above is “insufficient as a matter
of law to subject [Defendant] to the enhanced penalties in 21 U.S.C. § 841(b)(1)(B).5 Accordingly,
[Defendant] is subject to the penalties in 21 U.S.C. § 841(b)(1)(C),” which include no mandatory
minimum sentence.6 Defendant’s argument relies on the construction of U.S. Sentencing
Guidelines (“U.S.S.G.”) § 1B1.3(a)(1)(B), which sets forth a three-factor conjunctive test to
determine relevant conduct for sentencing purposes.7 Defendant contends that the jury found only
1 Dkt. 397 (Motion).
2 Dkts. 400 (Opposition); 402 (Reply).
3 Dkts. 109 (Minute Entry); 114 (Special Verdict Form). Defendant appealed his convictions and
on August 13, 2019, the Ninth Circuit Court of Appeals issued a memorandum decision affirming
Defendant’s convictions on Counts 1, 4, and 5, but reversing Count 2. Dkt. 371 (Decision). The
Court of Appeals vacated Defendant’s sentence and remanded the case for resentencing. Id. This
Court then granted Defendant’s Motion to Vacate his Conviction of Count 4, which the
Government did not oppose. Dkt. 392 (Text Order). Defendant is scheduled to be resentenced on
Counts 1 and 5. Dkt. 404 (Order).
4 Dkt. 114 at 1.
5 Dkt. 397 at 2.
6 Dkt. 397 at 2‒3; see 21 U.S.C. § 841(b)(1)(C).
7 Dkt. 397 at 5‒7; see U.S.S.G. § 1B1.3(a)(1)(B).
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one of the factors—that it was known or reasonably foreseeable to Defendant that the criminal
activity involved at least 50 grams of methamphetamine or a mixture of methamphetamine—but
the jury did not find that the “amount of methamphetamine was within the scope of the criminal
activity and that it was in furtherance of that activity.”8 Therefore, Defendant concludes that the
sole finding of reasonable foreseeability is insufficient to apply the 10-year mandatory minimum
sentence under 21 U.S.C. § 841(b)(1)(B).9
The Government opposes the Motion, arguing that it improperly asks this Court to add a new
element to the conspiracy charge.10 The Government differentiates the statutory language
requiring evidence that the conspiracy “involved” a drug type and quantity from the U.S.S.G.
language regarding relevant conduct.11 The Government argues that there is no mens rea
requirement for drug conspiracy and that the penalties for the underlying substantive offense, that
is, the object of the conspiracy, apply.12 The Government further argues that the U.S.S.G. test for
relevant conduct does not alter or supersede the statutory language of 21 U.S.C. §§ 846 and 841.13
Finally, the Government asserts that, even if the Court were to accept Defendant’s argument, the
error was harmless because the Government had presented “overwhelming evidence” of the total
weight of methamphetamine Defendant had in his possession at the time of his arrest.14
Accordingly, the Government requests that the Court deny the Motion and sentence Defendant in
accordance with 21 U.S.C. § 841(b)(1)(B)(viii).15
Replying to the Opposition, Defendant reiterates his argument: “the jury made only one of the
three findings necessary to impose the enhanced penalties in 21 U.S.C. § 841(b)(1)(B) for the
conspiracy conviction (Count 1).”16 Defendant asserts that the Government fails to discuss the
Ninth Circuit caselaw he presents in the Motion and argues that the Government’s reliance on the
Ninth Circuit’s model jury instructions fails to establish the requisite elements.17 Furthermore,
Defendant argues that the error in the jury findings was not harmless.18
Defendant challenges the jury’s special findings as to the amount of methamphetamine as a matter
of law because, according to his reading, the Ninth Circuit requires the additional findings under
the U.S.S.G.19 However, a closer reading of the Ninth Circuit cases cited by Defendant shows that
their holdings do not ultimately support Defendant’s argument.
8 Dkt. 397 at 5‒6 (emphasis added).
9 Id. at 6.
10 Dkt. 400 at 1‒2.
11 Id. at 4‒5.
12 Id. at 5‒9.
13 Id. at 9.
14 Id. at 11‒14.
15 Id. at 14.
16 Dkt. 402 at 1.
17 Id. at 2‒5.
18 Id. at 5‒7.
19 Dkts. 397 at 2, 5‒6; 400 at 3.
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In United States v. Becerra, the Ninth Circuit considered two codefendants’ argument that the
district erred when sentencing them based on insufficient evidence on the amount of drugs
involved in a drug conspiracy.20 The Becerra Court reversed one codefendant’s sentence because
there were “no facts on which the court could have based a finding that [the defendant] knew about
or could reasonably foresee the 25-kilogram transaction.”21 Prefacing the standard of review, the
Becerra Court clarified that “[t]he quantity of drugs is a sentencing issue addressed after proof of
a defendant’s guilt” and that “each conspirator may be sentenced only for the quantity of drugs
that he reasonably foresaw would be distributed or that fell within the scope of his own agreement
with his co-conspirators.”22 In a footnote, the Becerra Court rejected “the government’s argument
that sentencing under the statutory mandatory minimums should differ from the Guidelines” and
concluded “the government still must show that a particular defendant has some connection with
the larger amount on which the sentencing is based or that he could reasonably foresee that such
an amount would be involved in the transaction of which he was guilty.”23
In United States v. Torres, the Ninth Circuit affirmed the defendants’ convictions and mandatory
minimum sentences.24 The defendants had argued that the jury was not instructed “to find that the
drug quantities were associated with conduct that was in furtherance of jointly undertaken criminal
activity in addition to being reasonably foreseeable to each defendant,” relying on Becerra to
impose sentencing standards from the U.S.S.G.25 The majority opinion on this issue examined the
caselaw following Becerra.26 Each case acknowledges that sentencing under the statutory
minimums should be the same as under the U.S.S.G. yet nonetheless perpetuates a disjunctive
formulation despite the 1992 U.S.S.G.’s amended conjunctive formulation.27 Due to the apparent
conflict, both the majority and concurring opinions recommend en banc review of the issue.28 The
Torres majority then declined to “resolve those questions to reach a result in this case.”29 Instead,
the majority reasoned that because the defendants did not object to the jury instruction now at
issue, a plain error standard of review applies and under that standard, even if the jury had been
correctly instructed, “it seems highly unlikely that a different result would have been reached.”30
Accordingly, the Circuit Court affirmed the defendants’ sentences.
Here, Defendant makes the same argument the Torres majority explicitly left unresolved. As such,
the Court finds the concurring opinion in Torres persuasive. “Revisions to the Guidelines do not
themselves constitute intervening controlling authority, because the Guidelines do not affect our
20 992 F.2d 960, 966 (9th Cir. 1993).
21 Id. at 967.
22 Id. at 966.
23 Id. at 967 n.2.
24 869 F.3d 1089 (9th Cir. 2017).
25 Id. at 1095‒96.
26 Id. at 1104‒07.
27 Id.; see Becerra, 992 F.2d at 967 n.2; United States v. Banuelos, 322 F.3d 700, 704 (9th Cir.
2003).
28 869 F.3d at 1089‒99, 1106.
29 Id. at 1106.
30 Id. at 1106‒07.
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interpretation of a statute such as § 841.”31 The Court is bound by Circuit precedent, which
expressly endorses the disjunctive formulation: the trier of fact must find that the type and quantity
of drugs were either within the scope of the defendant’s agreement with his coconspirators or that
the type and quantity were reasonably foreseeable to the defendant.32 Without overriding authority,
this Court cannot deviate from Banuelos and has no basis for applying the conjunctive standard in
this case.33
Accordingly, Defendant’s Motion at Docket 397 is DENIED without prejudice.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: September 23, 2020.
31 Id. at 1098.
32 Id. at 1198‒99 (quoting Banuelos, 322 F.3d at 704) (emphasis added).
33 Id. at 1100.
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