United States of America v. Nancy Cole

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NANCY COLE,
Defendant-Appellant.
No. 19-50104
D.C. No.
3:17-cr-04414-CAB-2
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted June 4, 2020**
Pasadena, California
Before: CALLAHAN and NGUYEN, Circuit Judges, and KANE,*** District
Judge.
Nancy Cole appeals her conviction and sentence for importing and
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel withdrew submission of this appeal pending resolution of
United States v. Collazo, --- F.3d ----, No. 15-50509, 2021 WL 129792 (9th Cir.
Jan. 14, 2021) (en banc). The panel hereby resubmits this case as of the date this
memorandum is filed.
*** The Honorable Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
FILED
FEB 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
conspiring to import more than 500 grams of a substance containing
methamphetamine, in violation of 21 U.S.C. §§ 952, 960, and 963. Having
jurisdiction over this appeal under 28 U.S.C. § 1291, we affirm.
1. The district court properly declined to award Cole “safety valve” relief
under 18 U.S.C. § 3553(f), which can entitle a defendant to a sentence below the
mandatory minimum for “truthfully provid[ing] to the government all information
and evidence [she] has concerning the offense.” Although Cole admitted to
smuggling drugs into the United States, she claimed that she did so only because
her then-boyfriend threatened to kill her children if she refused. Yet messages
Cole exchanged with this man show that he was concerned about Cole’s and their
child’s safety and that Cole was the one threatening to harm him. In light of this
evidence, the court did not clearly err in finding that Cole failed to prove that she
provided truthful information to the government.1 See United States v. Real-
Hernandez, 90 F.3d 356, 361 (9th Cir. 1996) (explaining that the defendant must
“truthfully supply details of his own culpability”).
Relying on United States v. Haymond, 139 S. Ct. 2369 (2019) (plurality
opinion), Cole protests that § 3553(f) unconstitutionally relieves the government of
1 The district court’s decision on this point satisfies Federal Rule of Criminal
Procedure 32. See United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007)
(“[Rule 32 findings] need not be detailed and lengthy. Rather, they need only state
the court’s resolution of the disputed issues.” (quotations and citation omitted)).

-- 2 of 5 --

3
having to prove to a jury facts triggering an increased minimum sentence. This
argument conflates relief from an earned sentence with the elements of the crime
underpinning that sentence. See Lizarraga-Carrizales, 757 F.3d 995, 999 (9th Cir.
2014); United States v. Fincher, 929 F.3d 501, 504-05 (7th Cir. 2019). Haymond
is readily distinguishable, as it dealt with supervised-release violations resulting in
new mandatory minimums without the violations having been proven to a jury.
139 S. Ct. at 2378-80. Here, however, the jury’s findings authorized the sentence
imposed, and the onus of establishing an entitlement to less time appropriately
rested upon Cole.
2. We also reject Cole’s argument that the jury instructions and
government’s summation constructively amended her indictment. Pointing out
that the indictment charged her with knowingly importing and conspiring to import
methamphetamine, specifically, rather than a controlled substance, generally, Cole
contends that the government locked itself into having to prove her knowledge of
the drug type and quantity. But constructive amendments occur when “the
defendant is charged with one crime but, in effect, is tried for another crime.”
United States v. Pang, 362 F.3d 1187, 1194 (9th Cir. 2004). That did not happen
here, and at any rate “the indictment was not constructively amended . . . because .
. . [Cole’s] knowledge of drug type and quantity . . . was not ‘essential’ to [her]
conviction.” United States v. Sua, 307 F.3d 1150, 1155 (9th Cir. 2002).

-- 3 of 5 --

4
Furthermore, as Cole never broached this issue with the district court, we
review the matter for plain error, which requires Cole to show that any error
affected her substantial rights. United States v. Mickey, 897 F.3d 1173, 1183 (9th
Cir. 2018). This she cannot do. Her theory at trial was that she was wholly
innocent—that, unbeknownst to her, smugglers placed “drugs” in her car. She did
not argue that she believed she was smuggling some substance other than
methamphetamine. Because there is no “credible argument” that her trial strategy
and outcome would have been the same had the indictment advanced a more
general allegation, she was not prejudiced by its wording. See id. at 1184
(affirming a conviction where the defendant would not have approached his
defense any differently had the indictment hewed more closely to the statutory
language).
3. Nor did 21 U.S.C. § 960(b) otherwise require the government to prove
that Cole knew the type and quantity of the controlled substance she smuggled into
the United States. United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015),
forecloses this argument, and we recently reiterated our position in United States v.
Collazo, --- F.3d ----, No. 15-50509, 2021 WL 129792 (9th Cir. Jan. 14, 2021) (en
banc). There we held that a similar statute required the government to “prove
beyond a reasonable doubt the specific type and the quantity of substance involved
in the offense, but not the defendant’s knowledge of (or intent) with respect to that

-- 4 of 5 --

5
type and quantity.” Id. at *14. The government met that burden here.
Contrary to Cole’s contention, Rehaif v. United States, 139 S. Ct. 2191
(2019), does not compel a different result. First, that case concerned a statute
structured much differently than § 960(b). Id. at 2195-96. Second, the Court
required a mens rea for the one element separating the criminal conduct from
otherwise innocent behavior. Id. at 2196-97. In comparison, § 960(b) requires
defendants to knowingly import a controlled substance and thus does not punish
those lacking a culpable mental state. Rehaif is therefore not especially relevant to
this case.
4. Finally, we disagree with Cole that 21 U.S.C. § 960(b) is unconstitutional
for imposing sentences disproportionate to a defendant’s awareness of the
underlying circumstances. So long as the defendant “recognizes [that she] is doing
something culpable, . . . [she] need not be aware of the particular circumstances
that result in greater punishment.” United States v. Flores-Garcia, 198 F.3d 1119,
1121-22 (9th Cir. 2000); see also Collazo, 2021 WL 129792, at *13. Accordingly,
Cole was properly convicted and sentenced for importing and conspiring to import
500 grams or more of methamphetamine, even if the government did not prove her
knowledge of those specific facts.
AFFIRMED.

-- 5 of 5 --