[00:00:05] Speaker 02:
Good morning, Your Honors, and may it please the court, Holt Ortiz Alden on behalf of defendant appellant Andres Purgara.

[00:00:11] Speaker 02:
I would like to reserve four minutes, and I will watch my time.

[00:00:15] Speaker 02:
Errors occurred at every stage of this case.

[00:00:18] Speaker 02:
Today, there are three issues that I would like to address specifically.

[00:00:23] Speaker 02:
First, I want to start with the sentencing guidelines, because the dangerous weapon enhancement issue is cleanly presented.

[00:00:31] Speaker 02:
If this court holds that the enhancement was wrongly applied,

[00:00:34] Speaker 02:
it can remand for resentencing without addressing Mr. Bergara's other sentencing issues.

[00:00:40] Speaker 02:
Second, I would like to address the warrantless search of Mr. Bergara's car, and third, the jury instructions at trial.

[00:00:48] Speaker 02:
But first, with respect to the guidelines, it was plain error for the district court to apply the firearm enhancement on the drug counts because Mr. Bergara had also been convicted of two Section 924C counts.

[00:01:02] Speaker 02:
Those Section 924C counts led the guidelines to be increased by 120 months, 10 years.

[00:01:10] Speaker 02:
That's separate from, of course, the mandatory minimum.

[00:01:13] Speaker 02:
But within the formal guidelines range, that was an automatic addition of 120 months.

[00:01:20] Speaker 02:
The district court then added a separate and additional two-level enhancement for having guns in connection with the drugs.

[00:01:29] Speaker 02:
That's clearly the type of double counting that this court prohibits.

[00:01:34] Speaker 02:
In this court's opinion in the working case, the court recognized the tension between the section 924C guideline, which is section 2K2.4,

[00:01:44] Speaker 02:
and the drug guideline, section 2D1.1.

[00:01:47] Speaker 04:
So on the 924C counts, I think your briefs argued about sufficiency of the evidence and whether the convictions are multiplicitous.

[00:02:00] Speaker 04:
And the government argues the convictions are not multiplicitous because the guns were found or the firearms were found at different locations.

[00:02:10] Speaker 04:
Is that the argument you're making to us now?

[00:02:14] Speaker 02:
no your honor I'm addressing specifically the two level guidelines enhancement under guidelines section 21.1 subsection B one was that applied to the groups counts yes that was applied to the group counts exactly and the

[00:02:33] Speaker 02:
The ambiguity in applying the section 924C count and the plus two under the drug counts is because section 2K2.4 directs courts not to group the section 924C count.

[00:02:48] Speaker 00:
So the enhancement was not put on top of the 924C counts, it was put on top of the grouped counts?

[00:02:56] Speaker 02:
That's correct.

[00:02:57] Speaker 02:
Although for informal guidelines speak, they were both added to the total guidelines range.

[00:03:05] Speaker 02:
And so there was the initial drug weight that set the base offense level.

[00:03:10] Speaker 02:
The court added plus two under 2D 1.1 for the firearms.

[00:03:16] Speaker 02:
and then added 120 months for the section.

[00:03:19] Speaker 00:
OK, but just to understand your position, what you're saying is when you have a 924C count, you just cannot add to some other count this two level enhancement.

[00:03:33] Speaker 02:
Yes, exactly.

[00:03:34] Speaker 02:
And that's what this court held in the Aquino case.

[00:03:38] Speaker 02:
Following this court's opinion in Castillo and of the Supreme Court's decision in Kaiser,

[00:03:43] Speaker 02:
There is the question of whether the guideline text is ambiguous.

[00:03:47] Speaker 02:
And here, because of the double counting issue, it is.

[00:03:52] Speaker 02:
In a different circumstance, the count of conviction and the specific offense characteristic would be grouped.

[00:04:03] Speaker 02:
And that's under guideline section 3D1.2.

[00:04:07] Speaker 02:
Here, the commission made the decision

[00:04:10] Speaker 02:
that the 924C does not group.

[00:04:13] Speaker 02:
And that's in the text of 2K2.4.

[00:04:16] Speaker 02:
And so instead of having just the plus 2 for having a gun in connection with the drugs under the drug guideline,

[00:04:26] Speaker 02:
a defendant's formal guidelines range is increased by 60 months.

[00:04:31] Speaker 02:
And the commission decided that that fully addresses the harm of possessing a gun with or near drugs.

[00:04:39] Speaker 04:
So 2K2.4 comment 4 applies only if the sentence is imposed under this guideline.

[00:04:48] Speaker 04:
And the sentence was not imposed under 2K2.4.

[00:04:51] Speaker 04:
It was imposed under 2D1.1.

[00:04:55] Speaker 04:
So why is that applicable?

[00:04:58] Speaker 02:
Well, Your Honor, the district court, of course, was under an obligation to correctly calculate the guidelines prior to determining the sentence.

[00:05:05] Speaker 04:
Right, but the sentence was imposed under 2K 2.4.

[00:05:09] Speaker 02:
I believe that the district court calculated the guidelines by using the drug guideline

[00:05:18] Speaker 02:
based on weight and the plus two for a firearm, and then adding 120 months to that guidelines range based on the section 924 C count, which was pursuant to section 2K 2.4.

[00:05:30] Speaker 01:
You're really saying this is just a double punishment for having guns in relation to drugs.

[00:05:37] Speaker 02:
That's exactly right, and that creates ambiguity in how to apply both of them, because the law of the circuit is that double punishment for the exact same harm is improper,

[00:05:47] Speaker 02:
And so here, the commentary provides a perfectly reasonable resolution to that ambiguity, which this court has previously held is correct and appropriate.

[00:05:59] Speaker 01:
In other words, if the government had chosen not to bring counts three and counts eight, the 942C counts, so there was no conviction for those, then the gun enhancement under the group drug charges would have been appropriate.

[00:06:14] Speaker 02:
Exactly.

[00:06:15] Speaker 02:
And again, I think the Aquino and working opinions from this court make that clear.

[00:06:23] Speaker 00:
I take it the government is now arguing post-Castillo that if you just read what this says it says increase by two levels so we should just do that.

[00:06:33] Speaker 02:
That's right your honor and I think it's correct to conduct a normal regulatory statutory interpretation determination as to the guidelines but that involves more than just looking at the language in 2d 1.1 subsection B1.

[00:06:50] Speaker 02:
It requires, as the Supreme Court has repeatedly noted, looking at the structure of the text and other sections that may be relevant.

[00:06:59] Speaker 02:
Here, if the court looks at both 2D1.1 and 2K2.4, there is tension.

[00:07:06] Speaker 02:
And in the working case, the court specifically mentioned that tension.

[00:07:10] Speaker 02:
That creates this double-counting ambiguity.

[00:07:14] Speaker 00:
What is the actual impact of this two-level enhancement on the sentence?

[00:07:19] Speaker 02:
Your Honor, I don't know the months, but at this zone in the guidelines, a two-level enhancement can be quite significant.

[00:07:28] Speaker 02:
It can be in the range of two to four years, often.

[00:07:31] Speaker 02:
And so in incorrectly calculating the guidelines, the district court used the wrong starting point in sentencing Mr. Bergara.

[00:07:39] Speaker 02:
And that would, if the court were to remand on that issue for full resentencing, that would resolve, or the court would not need to address Mr. Bergara's other sentencing points, including multiplicity.

[00:07:52] Speaker 00:
Why do you say we wouldn't need to address it?

[00:07:53] Speaker 00:
I mean, wouldn't there need to be some guidance on some of these other points you've raised?

[00:07:58] Speaker 02:
I think that, I'm sure the district court would welcome the court's guidance on these issues, but the court wouldn't be required to address those if it were to remand

[00:08:08] Speaker 02:
for full resentencing because the guidelines were calculated incorrectly.

[00:08:12] Speaker 01:
Well, isn't, I'm sorry to interrupt.

[00:08:14] Speaker 00:
Well, I mean, maybe we have the same question.

[00:08:16] Speaker 00:
What do you mean by full resentencing?

[00:08:17] Speaker 00:
Because if the only error here was, I mean, there's other arguments being made about multiplicity, which Judge Akuta referenced.

[00:08:23] Speaker 00:
And so perhaps the district court will want to know the answer to that if, in your view, there's already going to need to be some amount of resentencing.

[00:08:31] Speaker 00:
Because if you claim there's an error on that front, that could be repeated and it could come back here again.

[00:08:37] Speaker 02:
Yes, Your Honor.

[00:08:38] Speaker 02:
I think it's within this Court's discretion to remand just on the guidelines issue for full resentencing.

[00:08:45] Speaker 02:
As to the multiplicity counts, I think the drug charges, Section 841 multiplicity, is distinct from the gun charges, Section 922 multiplicity.

[00:08:58] Speaker 02:
And we do argue in the papers that the 924C

[00:09:04] Speaker 02:
double charge is a sufficiency argument a little bit different from normal multiplicity.

[00:09:11] Speaker 02:
So I can begin with the 841 drug charges.

[00:09:16] Speaker 02:
Possession with intent to distribute is a continuing offense.

[00:09:20] Speaker 02:
That's the law of the circuit.

[00:09:22] Speaker 02:
And in the Mancuso case, this court determined that a seven-year-long possession charge for cocaine was

[00:09:34] Speaker 02:
appropriately included in a single count.

[00:09:38] Speaker 00:
Here they were found in two places, right?

[00:09:41] Speaker 00:
Two separate batches of cocaine.

[00:09:45] Speaker 02:
Yes, they were in two places.

[00:09:49] Speaker 02:
Section 841 creates punishments based on the type of drug and the drug weight.

[00:09:56] Speaker 02:
That's how it enhances punishments.

[00:09:59] Speaker 02:
someone who obtains a certain amount of a drug, cocaine, and puts them in both of his cars hasn't committed more than one offense under section 841.

[00:10:12] Speaker 02:
The simultaneous possession of the exact same drug is one offense.

[00:10:19] Speaker 02:
And what happened in Mancoso was that the government charged it, these possessions over seven years, as a single possession offense

[00:10:28] Speaker 02:
and argued that it had met the 500 gram mandatory minimum.

[00:10:33] Speaker 02:
In that case, the jury found that it had not.

[00:10:36] Speaker 00:
I mean, what are the limits to this?

[00:10:37] Speaker 00:
Because on the one hand, somebody could have a bag of cocaine in the front seat of the car and a bag of cocaine in the back seat of the same car.

[00:10:44] Speaker 00:
And obviously, in that case, you would say, no, that's the same offense.

[00:10:48] Speaker 00:
But here, we do have two cars, right?

[00:10:51] Speaker 00:
And they're found in different places.

[00:10:54] Speaker 00:
And so why wouldn't we regard that as two separate instances of possession?

[00:10:58] Speaker 02:
Again our position broadly is if it's simultaneous possession of the exact same drug It should be a single 841 what if he had you know cocaine in his car and then cocaine in his other house 50 miles away

[00:11:16] Speaker 02:
I think that Congress, under the section in title, has made the decision to punish that based on weight.

[00:11:23] Speaker 00:
You would say that's one offense.

[00:11:25] Speaker 02:
Yes.

[00:11:26] Speaker 02:
And I do think that the Mancuso case is significant there, because it was an extended period of different possessions, essentially.

[00:11:35] Speaker 04:
Prevent.

[00:11:36] Speaker 04:
The case of Prevent is distinguishable.

[00:11:40] Speaker 02:
I'm sorry, Your Honor?

[00:11:40] Speaker 04:
Prevent.

[00:11:42] Speaker 02:
Yes, Your Honor, precisely because it

[00:11:45] Speaker 02:
Well, for two reasons.

[00:11:46] Speaker 02:
First, the reasoning as to the heroin in that case

[00:11:51] Speaker 02:
is dicta, as the court itself stated in the opinion.

[00:11:55] Speaker 02:
Second, the heroin was found to have different purity levels in each of the separate locations.

[00:12:02] Speaker 04:
So separate location plus difference in.

[00:12:05] Speaker 04:
So if the drug has the same purity levels, one offense.

[00:12:10] Speaker 04:
And if it's different purity levels, two offenses, is that what you're saying?

[00:12:15] Speaker 02:
I think that was what the court in Privet relied on.

[00:12:19] Speaker 02:
Yes, and in this case, there's no evidence that the cocaine in the two locations was distinguishable in any way, other than- Is the review on this plain error?

[00:12:28] Speaker 02:
It is plain error, Your Honor.

[00:12:32] Speaker 02:
Because it's purely a question of law, I think the court has the discretion to review it de novo.

[00:12:38] Speaker 02:
The Castillo case also addresses that issue, but it was not raised below.

[00:12:46] Speaker 02:
The Stevens and Clay opinions from the Sixth and Eleventh Circuits also addressed this issue and both held that having simultaneous possession of the same controlled substance, of course, is just one offense.

[00:13:00] Speaker 02:
With respect, because I'm running short on time, Your Honor, I'm happy to speak more about the gun multiplicity.

[00:13:07] Speaker 02:
I would prefer to turn to the jury instructions here.

[00:13:11] Speaker 02:
With respect to the jury instructions,

[00:13:15] Speaker 02:
This court can review the instructions for plain error under the Anbanque Perez case, and in doing so, despite the fact that trial counsel for the defense provided the instruction, this court should review it the same as any other instructional error, although for plain error.

[00:13:34] Speaker 02:
The first two steps of plain error

[00:13:37] Speaker 02:
are established here under the Krause and Rios cases.

[00:13:41] Speaker 02:
Krause explicitly rejected this list of factors that the jury was instructed on.

[00:13:47] Speaker 02:
And a few years later in Rios, the court reaffirmed that holding and said that Krause had rejected.

[00:13:55] Speaker 04:
Are you talking about instruction 27?

[00:13:59] Speaker 04:
Instruction 27.

[00:14:01] Speaker 02:
Your honor, I have it in my notes as instruction 24, which is the list of factors.

[00:14:07] Speaker 04:
So the government says that this was invited here or mistaken verbatim from Bergara's proposal.

[00:14:14] Speaker 04:
Is that not correct?

[00:14:15] Speaker 02:
That's incorrect, Your Honor.

[00:14:17] Speaker 02:
This court's invited error doctrine is very limited following the Perez en banc opinion.

[00:14:24] Speaker 02:
The government would be required to show that defense counsel knew of the proper legal definition and decided against using it with the jury.

[00:14:34] Speaker 02:
Here, there's no evidence, and the government has not pointed to any evidence, that trial counsel was aware of the Kraus case or the Rios case.

[00:14:43] Speaker 00:
right but i mean what is the language not language that was suggested by the defense it was and that's this court uh... regularly reviews

[00:14:53] Speaker 02:
instructions invited by the defense for plain error when there's no evidence that trial counsel knew of the specific legal standard and chose to waive the jury being correctly instructed on that standard.

[00:15:09] Speaker 02:
And so in, for example, the Burt case that's cited in the papers,

[00:15:15] Speaker 02:
the defense submitted the instruction, and the court ultimately reversed for plain error.

[00:15:20] Speaker 02:
And so this is not an issue of waiver.

[00:15:23] Speaker 02:
Here it was forfeiture.

[00:15:26] Speaker 02:
Because there's no evidence, trial counsel knew the correct legal standard, and therefore this court can review for plain error.

[00:15:33] Speaker 02:
Very briefly, with respect to prejudice on the instruction,

[00:15:40] Speaker 02:
This court has two related opinions on section 924C instructions that I think are relevant.

[00:15:47] Speaker 02:
One is the Irons case.

[00:15:49] Speaker 02:
The other is the Thongsy case.

[00:15:51] Speaker 02:
In Thongsy, this court found instructional error, but determined that it was harmless because the error was very limited and the jury must have found the proper standard.

[00:16:03] Speaker 02:
In the Irons case, however, the court reversed under the plain error standard.

[00:16:08] Speaker 02:
It determined that the improper instructions took away from the jury the subjective intent requirement.

[00:16:16] Speaker 02:
So even though it provided appropriate factors for the jury to consider, they were only objective factors.

[00:16:23] Speaker 02:
The same is true here.

[00:16:25] Speaker 02:
By providing this false, erroneous instruction, the court

[00:16:30] Speaker 02:
allowed the jury to convict Mr. Bergara without a finding that he subjectively had the intent appropriate under Section 924C.

[00:16:40] Speaker 02:
The government also referenced every single one of these improper factors in its rebuttal closing argument and

[00:16:51] Speaker 02:
invited the jury to convict Mr. Bergara on that basis.

[00:16:57] Speaker 02:
I would like to reserve the remainder of my time.

[00:16:59] Speaker 04:
Thank you.

[00:17:00] Speaker 04:
We'll hear from the government.

[00:17:23] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:17:25] Speaker 03:
Connor Winn for the United States.

[00:17:28] Speaker 03:
This Court should affirm Mr. Bergara's convictions and, in large part, his sentence.

[00:17:33] Speaker 03:
That is because the evidence in this case was legally gathered, because his trial was free of any prejudicial heir, and because his sentence suffers no plain or preserved constitutional or guidelines heir.

[00:17:45] Speaker 03:
I intend to address the same issues that Mr. Bergara just has here, but I am happy to answer any questions that this court may have about the many issues in this case.

[00:17:52] Speaker 01:
Let's take one issue off the table.

[00:17:55] Speaker 01:
You do agree that we need to send it back, or you suggest we do, to deal with the part of the sentence in which he started with 151 months, and that is more than the maximum for counts four, five, six, and nine, correct?

[00:18:12] Speaker 03:
I agree with that.

[00:18:13] Speaker 03:
It's within the maximum for count one, which is the statutory possession with intent to distribute methamphetamine.

[00:18:19] Speaker 03:
So it's sound on that.

[00:18:20] Speaker 03:
But as to those four other counts, it exceeds the statutory maximums in effect at that point in time.

[00:18:25] Speaker 03:
But that's not grounds to alter the overall sentencing package in any way, because the 151 sentence went to the groups count, of which that possession to distribute methamphetamine is the lead count.

[00:18:35] Speaker 03:
That's your argument to the district court.

[00:18:36] Speaker 03:
If we send it back, of course, the district court

[00:18:39] Speaker 01:
is free to do what the district court wants to do, aren't they?

[00:18:42] Speaker 03:
Well, I don't think there's even a need to vacate the sentencing package as a whole here because from the sentencing transcript, it's clear that the district court had the intent of putting 151 months on the grouped counts and then having 120 months to follow on the 924 counts.

[00:18:57] Speaker 03:
That sentencing intent can be left intact here because all that's necessary is to leave the 151 on the lead methamphetamine charge and 120 on the two ensuing 924C.

[00:19:06] Speaker 03:
So the same sentencing intent can be effectuated.

[00:19:10] Speaker 03:
Since we're on sentencing, I'll turn to both the Castillo and the multiplicity issues, starting with the Castillo issue.

[00:19:16] Speaker 03:
To be clear, this issue is on plain air before this court.

[00:19:21] Speaker 03:
Whether or not the district court plainly erred in imposing the two-point enhancement under sentencing guideline 2D1.1,

[00:19:28] Speaker 00:
in the wake of Castillo.

[00:19:46] Speaker 03:
advocated against the methodology in Castillo and continues to kind of object to that overarching framework.

[00:19:52] Speaker 03:
But given that Castillo is now the law of the land, the way that we approach the sentencing guidelines in this circuit are different.

[00:19:57] Speaker 03:
We ask whether the guidelines text and structure itself reveals any ambiguity in how the district court is supposed to go about sentencing a defendant under the guidelines.

[00:20:06] Speaker 00:
But Castillo was not decided at the time of the sentencing, right?

[00:20:09] Speaker 03:
No, it wasn't, Your Honor, but here before this court were asking whether in light of that intervening case development, there is now air and plane air in addition.

[00:20:20] Speaker 03:
In particular, plane air is usually judged at the moment of the appeal.

[00:20:23] Speaker 03:
So granted, when the district court made that guidelines determination under this court's precedent, I think that it was incorrect.

[00:20:32] Speaker 03:
But intervening case law has now remedied it proper.

[00:20:35] Speaker 03:
In some sense, maybe the district court lucked out, but that's where we are.

[00:20:39] Speaker 00:
Well, but I mean, I think your friend on the other side has a has a fair argument that, you know, if you look at the guidelines structurally, we don't want to double count the same weapon twice, essentially.

[00:20:53] Speaker 00:
And that and so isn't that what we would be doing here if we applied this to level enhancement given the 924 C charges?

[00:20:59] Speaker 03:
I think the guidelines generally try to strive against double counting.

[00:21:03] Speaker 03:
I don't disagree with that sentiment, but I don't think that means that double counting is always impermissible under the guidelines.

[00:21:09] Speaker 03:
And I think when you have a perfectly clear guideline instructing the court how to go about calculating the sentence, there's really no way to vary from that.

[00:21:18] Speaker 00:
Right.

[00:21:18] Speaker 00:
But I mean, just to just to pause you there.

[00:21:20] Speaker 00:
Right.

[00:21:20] Speaker 00:
The question post Castillo is going to be, is this, you know, unambiguous and your friend on the other side says, well, if you look at that one line in isolation, perhaps.

[00:21:30] Speaker 00:
But when you look at the guidelines as a whole.

[00:21:33] Speaker 00:
No, there is ambiguity.

[00:21:35] Speaker 00:
So essentially a structural ambiguity.

[00:21:37] Speaker 00:
And at that point, we do have a prior case, pre-Castillo case, that we have to contend with.

[00:21:43] Speaker 00:
We would have to conclude that, in fact, that prior case is now clearly irreconcilable with Castillo and the methodology there.

[00:21:50] Speaker 03:
I agree with you.

[00:21:51] Speaker 03:
I think that is what's on the table here, is concluding that Aquino is irreconcilable with Castillo.

[00:21:57] Speaker 03:
I think the problem, if double counting was always forbidden under the guidelines, I think the argument you're articulating would be sound and have good basis.

[00:22:06] Speaker 03:
but it's not always prohibited.

[00:22:08] Speaker 03:
And because of that, I don't think you can look at some nebulous inference from this broad guideline structure and say that that overcomes the plain text, both of 2D 1.1 and the text of 2K.4.

[00:22:20] Speaker 03:
2K.4 in its own text, this is the guideline that addresses 924 C-chargers, says nothing about how you're supposed to adjust the offense level for the predicate offenses.

[00:22:29] Speaker 00:
I mean, usually Castillo's a relatively new case.

[00:22:32] Speaker 00:
The government didn't seek rehearing en banc in that case either, I don't believe.

[00:22:37] Speaker 00:
But we're here with the precedent.

[00:22:40] Speaker 00:
Usually Castillo, you would think, would be of benefit to defendants.

[00:22:44] Speaker 00:
And so here the government's actually claiming that, in fact, it can take advantage of the methodology.

[00:22:49] Speaker 03:
I think oftentimes Castillo will benefit the defendants, as it did in that case.

[00:22:53] Speaker 03:
But the methodology is going to move across guidelines.

[00:22:57] Speaker 03:
And I don't always think it's going to be a defendant always wins card.

[00:23:00] Speaker 03:
In some cases, the guidelines are now going to act more harshly under the reasoning that we have in Castillo.

[00:23:05] Speaker 03:
Now, to be clear, there are ways that that can be amended.

[00:23:08] Speaker 03:
For example, the sentencing commission could move the commentary to 2D 1.1 and 2K.4 up into the text of the guidelines itself and correct this.

[00:23:16] Speaker 03:
The Sentencing Commission has started to take that approach with regards to a number of guidelines in the wake of decisions like Castillo, but it has not yet done so with regards to this particular.

[00:23:25] Speaker 00:
Do you know what impact this two level enhancement has on the on the package here?

[00:23:31] Speaker 03:
I can't say for certain.

[00:23:32] Speaker 03:
I'm sure that it did raise the overall guidelines range.

[00:23:35] Speaker 03:
I think it's worth noting that Mr. Bergara wasn't in any event sentenced to a below-guidelines sentence in this case.

[00:23:40] Speaker 03:
He received 271 months, which fell below the guidelines range that took into account.

[00:23:45] Speaker 01:
Except that wasn't the trial court's intent.

[00:23:47] Speaker 01:
If you read his full sentencing transcript,

[00:23:50] Speaker 01:
What he was trying to do is with the two five-year mandatory minimums, which stacked, he was using those 10 years to add to the 151.

[00:23:58] Speaker 01:
The 151 plus 120, he was trying to get to the low end of the full range.

[00:24:07] Speaker 01:
So, if he got rid of the two-level enhancement, the 151 would have been lower, and I think that's what we're wondering now.

[00:24:14] Speaker 01:
We can look at the chart and figure that out.

[00:24:16] Speaker 01:
But I think his intent was to stack it all up to that low range from what the guideline suggested range was.

[00:24:23] Speaker 03:
I'm going to agree.

[00:24:24] Speaker 03:
I think that his intent with regards to taking into account both the predicate offenses and then the separate 924C offenses was to reach a below guidelines result, and then he distributed that sentence across the predicate

[00:24:36] Speaker 03:
and 924-C counts.

[00:24:37] Speaker 03:
That's certainly what he did.

[00:24:38] Speaker 00:
You may not know this off the top of your head, but you referenced the idea that elsewhere in the guidelines there does allow double counting.

[00:24:45] Speaker 00:
Do you happen to know other places that that would you direct us to on that?

[00:24:50] Speaker 03:
Not off the top of my head, but if the court would like, I'm happy to provide a citation to that in a real 28-J letter for an example of where double counting is at least sometimes permitted under the guidelines.

[00:25:00] Speaker 03:
Turning to the multiplicity issue that we were discussing that's been mentioned here, specifically as it pertains to section 841A1.

[00:25:07] Speaker 03:
Now, I think it's notable that this court has never addressed multiplicity in the context of this offense.

[00:25:13] Speaker 03:
Its most analogous case law has been in the 922G context, but 841A1 operates a little bit.

[00:25:20] Speaker 00:
Okay, you were about to, I was gonna ask you to think it should be different, but go ahead.

[00:25:24] Speaker 03:
I think 841A1 both operates similarly and differently, and that's because of the unit of prosecution underlying that offense.

[00:25:31] Speaker 03:
The unit of prosecution for an 841A1 offense is the possession of a given drug.

[00:25:37] Speaker 03:
So there's two questions there, right?

[00:25:38] Speaker 03:
First, you have to ask what is the drug that is being possessed, and then the second is what are the contours of a possession.

[00:25:44] Speaker 03:
And that is what this appeal concerns, the contours of a given incident of possession.

[00:25:49] Speaker 03:
Now, what happens in the 922G context and what was adapted to this trial is that the jury is instructed that in order to convict, it needs to find that the defendant stored different cocaine in different places.

[00:26:02] Speaker 03:
You can see that in the jury instructions that the district court gave here.

[00:26:05] Speaker 03:
Therefore, when the jury returned a verdict finding Mr. Bergara guilty on both 841A1 counts, that reflected the jury's finding that he did in fact possess different cocaine in different places.

[00:26:17] Speaker 03:
That distinctiveness finding by the jury is enough to confirm that there are two separate incidents of possession here.

[00:26:23] Speaker 03:
And it can only be overturned by this court, typically in the 922G context, but we think the same rule should apply here, if there's insufficient evidence for a jury to find distinctive possessions of the same drug.

[00:26:34] Speaker 03:
we would submit that there certainly is enough evidence for the jury to make such a distinctiveness finding here.

[00:26:39] Speaker 03:
The cocaine was kept in two separate locations, one in a mobile Honda and one in a truck that largely sat outside of Mr. Bergara's home.

[00:26:47] Speaker 03:
Not only that, there was a reference to... But so what is the right unit here, right?

[00:26:52] Speaker 00:
I mean, what if he had two separate stashes of cocaine in one car?

[00:26:56] Speaker 00:
Two possessions or one?

[00:26:58] Speaker 03:
It's a much closer question than in this case, Your Honor.

[00:27:00] Speaker 03:
I think in that incidence, you might start to veer towards one singular possession, right?

[00:27:05] Speaker 03:
Because presumably they're within his reach or easy access, all in the same instantaneous moment of time.

[00:27:13] Speaker 00:
And I think that gets- I mean, does it matter then that two of these cars were essentially associated with the same house?

[00:27:18] Speaker 00:
Because you could say, well, the relevant unit really should be his domicile.

[00:27:23] Speaker 00:
And now we have two cars in the same general area, and that's one possession.

[00:27:27] Speaker 03:
No, I don't think so because the

[00:27:30] Speaker 03:
As it was secured here, the cocaine was in two different places, even though at the same time.

[00:27:34] Speaker 03:
And I think this gets to the point that in determining whether there are two incidents of possession, it's a very fact-intensive inquiry that's going to turn on a number of different factors that might come up in a case.

[00:27:44] Speaker 03:
We've been talking about place or moments in time.

[00:27:47] Speaker 03:
Judge Akuta, your reference to the Privet case also noted purity.

[00:27:50] Speaker 03:
That's another factor that could show distinctiveness of a possession.

[00:27:53] Speaker 03:
Packaging on the drugs, for example, if one were packaged with one brand label and one were packaged with another.

[00:27:59] Speaker 03:
if it was shown that one stash we used to serve one clientele and another stash was primarily for a different cast of clientele.

[00:28:05] Speaker 00:
What do we have here then?

[00:28:05] Speaker 00:
Just that it was in two cars?

[00:28:07] Speaker 00:
Is there anything more on the packaging or some of these other details that you're referencing?

[00:28:10] Speaker 03:
Yes, so I would submit that here you have both two different places and you have different packaging.

[00:28:16] Speaker 03:
So the places are obvious.

[00:28:18] Speaker 03:
One was found in a white Honda.

[00:28:19] Speaker 03:
The other was found in a truck.

[00:28:21] Speaker 03:
As for packaging, the cocaine found within the white Honda, it's in small, medium, and large amounts.

[00:28:27] Speaker 03:
It's clearly meant for easy distribution, depending on the amount being bought by a customer at a given point in time.

[00:28:33] Speaker 03:
Meanwhile, the packaging of the cocaine in the truck is in bulk.

[00:28:36] Speaker 03:
It's just a large portion of cocaine, and clearly not used in the same manner, right, for on the street customer to customer distribution.

[00:28:46] Speaker 00:
I mean, how relevant is this to the concept of possession?

[00:28:49] Speaker 00:
Because if he had a huge bag of cocaine in his room and then smaller little baggies also in the same room, I'm not sure you would be saying, well, that's actually two different possessions because of the two different types of packaging if they're both in the same room.

[00:29:03] Speaker 03:
Maybe not, but I think, once again, that this is getting at how fact-intensive an inquiry this is, and it's typically the proper matter for the jury.

[00:29:11] Speaker 03:
This court really only has a role to come in and say that, in fact, is a single possession when no reasonable fact finder could find different possessions.

[00:29:17] Speaker 03:
I think on the facts of this case, given the packaging and the divergence in place, there is sufficient evidence for the jury here to have concluded that Mr. Bergara did, in fact, have two separate stashes of cocaine.

[00:29:28] Speaker 03:
And I certainly don't think there's enough evidence here for this court to conclude that there's plain air in sentencing him on two separate 841A1 counts based on that separate possession.

[00:29:36] Speaker 00:
What is it?

[00:29:36] Speaker 00:
What is the consequence of, you know, if you if you were not to prevail on this and there was only one, is there only there still there is still possession of cocaine?

[00:29:45] Speaker 00:
How does that affect the sentence in any way?

[00:29:47] Speaker 03:
So I think if this court were to conclude that the 841A1 count has to fall because of a multiplicity problem, the knockdown effect that has is one of Mr. Bergara's 924C convictions also has to come.

[00:29:58] Speaker 03:
Because the two 924C convictions were each respectively based on one 841A1 conviction that had to do with the possession of cocaine.

[00:30:06] Speaker 00:
Each 924C count under this court's president- Okay, so those are stacked, so this actually does have a pretty significant impact.

[00:30:13] Speaker 03:
Right, I think that at the very least five years would fall off the sentence.

[00:30:17] Speaker 03:
That's correct.

[00:30:19] Speaker 03:
Turning away from the sentencing issues that we've been discussing so far, I think it's worth getting to the jury instruction issues that Mr. Bergara raised.

[00:30:26] Speaker 03:
A couple of points here.

[00:30:27] Speaker 03:
First, as the panel was noting, instruction 27 is classic invited air, even under the Ninth Circuit's somewhat stringent invited air standards.

[00:30:36] Speaker 03:
Mr. Bergara proposed that multifactor instruction that the district court gave.

[00:30:42] Speaker 03:
The government, in fact, objected to that instruction before the district court.

[00:30:46] Speaker 03:
You can see that on pages on supplemental excerpts of record 74 to 76, where we objected to that instruction and told the district court, do not give it.

[00:30:55] Speaker 03:
We cite there a case called the United States v. Lopez, which is from this court, which talks about how the sufficiency analysis for the furtherance of the 924C instruction is supposed to go.

[00:31:05] Speaker 03:
That case actually derives from the Kraus and Rios cases disapproving the seven factor instruction.

[00:31:10] Speaker 03:
that was incorporated into instruction 27.

[00:31:12] Speaker 03:
Nevertheless, our objection was overruled and the district court accepted Mr. Begar's invitation to use this instruction at trial.

[00:31:18] Speaker 03:
There could not be a more classic case of invited error.

[00:31:21] Speaker 03:
Even if this court were to review that instruction and the other one for plain error, I think instruction 27, it's not, there is one plain defect in that instruction, and that's the conflation of section 924 C's in furtherance of, endearing, and relation clauses.

[00:31:38] Speaker 03:
I do agree that that's a plain error, but under this court's precedent in both Thongse and Nobari, it's one that has long been deemed to not substantially affect a defendant's rights, and is categorically not corrected for a miscarriage of justice.

[00:31:51] Speaker 03:
On instruction 27, the other parts of it that Mr. Bergara faults, for example, that seven multi-factor instruction, I don't even know that that actually constitutes air under this court's case law.

[00:32:00] Speaker 03:
This court and Krauss and Rios have said that those seven factors aren't particularly helpful for evaluating the sufficiency of the evidence for a 924C count, because that's a holistic process that should look at all the facts in a case.

[00:32:14] Speaker 03:
But I don't think it was air to tell the jury that they could consider those seven factors, especially when the instruction is phrased in a manner that says, including these seven factors.

[00:32:23] Speaker 03:
Seems correct.

[00:32:24] Speaker 03:
The jury certainly can think about those seven things.

[00:32:26] Speaker 03:
And under this court's case law, anything else that is relevant to the furtherance of inquiry.

[00:32:32] Speaker 00:
I don't want to cut you off, but I'm not sure if you were going to address the multiplicity on the 922G.

[00:32:38] Speaker 00:
Certainly.

[00:32:39] Speaker 00:
Can you just walk through that?

[00:32:40] Speaker 03:
Yes, I'm happy to.

[00:32:41] Speaker 03:
So under this court's longstanding precedent, multiple 922G counts can stand as long as the guns are stored or acquired in different places or at different times.

[00:32:52] Speaker 03:
that occurred here, right?

[00:32:54] Speaker 03:
And you can see that because the three guns that formed the basis for these counts were the ones in the white Honda where Mr. Bergara was arrested, the one found inside his home, and the one found inside the truck.

[00:33:06] Speaker 00:
The gun found... There were actually two, I mean there were two in the home and two in the truck, is that accurate?

[00:33:11] Speaker 03:
There were multiple, but the way that that works is each of those would be sort of one storage of guns.

[00:33:17] Speaker 00:
Okay, so you actually had five guns, three counts, three places.

[00:33:20] Speaker 03:
I agree with that, yes.

[00:33:22] Speaker 03:
I also think it's worth noting that to the extent that one could think that the guns in the truck and the guns in the house might be stored on the same property, at least one of the guns in the house was acquired at a different point of time.

[00:33:34] Speaker 03:
We note that fact in a footnote in our brief when we're discussing this.

[00:33:37] Speaker 03:
That acquisition of the gun at a different time provides another ground for a separate 922G count apart from the guns stored at the home and truck.

[00:33:44] Speaker 00:
Just conceptually, do you think this works differently than the cocaine counts in terms of analyzing what counts, what should be regarded as a multiplicitous count?

[00:33:56] Speaker 03:
I do think that they function somewhat differently, and that is principally because of the fact that, for example, a pile of drugs is, in theory, infinitely divisible.

[00:34:05] Speaker 03:
You can take a pound of cocaine and make it two things of half a pound or four things of a quarter of a pound.

[00:34:11] Speaker 03:
You cannot take one gun and disassemble it and now have two guns.

[00:34:14] Speaker 03:
It doesn't work in quite that same way.

[00:34:16] Speaker 03:
So that's why in the 922G context, we're looking at whether guns are stored or acquired and why the government is suggesting here that when it comes to cocaine,

[00:34:23] Speaker 03:
It's a bit more of a holistic analysis in deciding whether two separate caches of cocaine can be considered distinct possessions.

[00:34:31] Speaker 03:
Does that make sense, Your Honor?

[00:34:31] Speaker 00:
Yeah, it does.

[00:34:32] Speaker 03:
Thanks.

[00:34:34] Speaker ?:
OK.

[00:34:35] Speaker 03:
I think I'll finish up on the jury instructions unless the court has questions about anything else in this matter.

[00:34:41] Speaker 03:
Okay, then I want to talk about the second plainly erroneous jury instruction in this case.

[00:34:47] Speaker 03:
That concerns the gun play to roll instruction.

[00:34:50] Speaker 03:
I think under this court's case law in Fongsy, that instruction is quite clearly, fails to affect Mr. Bergara's substantial rights on appeal.

[00:34:59] Speaker 03:
Fongsy actually involved in basically the identical same language used in a jury instruction, and this court confirmed that that was error, but it was reviewing whether or not that error was harmless beyond a reasonable doubt.

[00:35:11] Speaker 03:
This court said yes, so it affirmed that it was harmless on an even higher standard than what we're facing here.

[00:35:16] Speaker 03:
And the reason for that was that the gun

[00:35:20] Speaker 03:
The only instances when the gun played a role language being used to define the furtherance of requirement of a section 924 C crime is going to matter, according to the Thongsy opinion, is the rare instance where a defendant unknowingly brings a gun to a drug transaction and the gun somehow becomes involved in that drug transaction or is revealed to others and in that way manages to further the drug deal.

[00:35:43] Speaker 03:
That was not the case in Tongzi, and it is certainly not the case here.

[00:35:47] Speaker 03:
Mr. Bergara kept three separate drug stashes of cocaine in three separate places and every time he stored weapons with those stashes.

[00:35:55] Speaker 03:
I think to say that Mr. Bergara unknowingly kept drugs and guns together is impossible, and I don't even think he made that argument during trial.

[00:36:02] Speaker 03:
In fact, his counsel conceded as much.

[00:36:05] Speaker 03:
For that reason, that instruction also is not going to substantially affect his prejudicial rights.

[00:36:12] Speaker 03:
With a minute left, I think it's worth saying one moment about the cumulative air doctrine, which does actually have some role to play here in the sense of there are at least two plain airs, and I think the confrontation clause issue is likely also a plain air.

[00:36:26] Speaker 03:
So the cumulative air doctrine matters here.

[00:36:28] Speaker 03:
How to go about that is this court has to first determine whether or not heirs are preserved, then it groups them accordingly.

[00:36:34] Speaker 03:
It reviews any preserved heirs first, determines if there was harmlessness given all those preserved heirs taken together.

[00:36:41] Speaker 03:
Then if it concludes it's harmless, it moves to the plain heirs, taking into account the previous heirs not under the plain heir review standard and the plain heirs.

[00:36:52] Speaker 03:
It then asks whether all those heirs substantially affect Mr. Bergara's prejudicial rights.

[00:36:57] Speaker 03:
This is the analysis that the Tenth Circuit and the First Circuit have adopted.

[00:37:01] Speaker 03:
Specifically, the Tenth Circuit has gone about this approach in United States v. Caraway.

[00:37:05] Speaker 03:
This court's never addressed how to go about that analysis.

[00:37:08] Speaker 03:
We would recommend that approach.

[00:37:11] Speaker 03:
And for reference, United States v. Caraway is 534 F.3D 1290, 1302, Tenth Circuit 2008.

[00:37:17] Speaker 03:
and there is no cumulative error here given the overwhelming evidence against Mr. Bergara.

[00:37:24] Speaker 03:
Thank you, Your Honors.

[00:37:25] Speaker 04:
Okay.

[00:37:26] Speaker 04:
I have a few minutes left for rebuttal.

[00:37:37] Speaker 02:
Your Honors, if I may, I plan to very quickly address multiplicity, the guidelines, and then the jury instruction.

[00:37:44] Speaker 02:
Judge Akuta, I was incorrect.

[00:37:45] Speaker 02:
It is instruction 27 that we're all talking about.

[00:37:48] Speaker 02:
My apologies.

[00:37:49] Speaker 02:
With the cocaine counts in multiplicity, the government references distinctiveness between separate cocanes.

[00:37:57] Speaker 02:
There's no basis in the 841 statute for the factors that the government is referencing.

[00:38:05] Speaker 02:
Certainly the instruction given to the jury here, which was whether they are distinct, has no basis in this circuit's case law.

[00:38:15] Speaker 02:
And so in looking at the one case that we do have, Mancuso, which found a singular offense across years of possession, I think that here simultaneous possession is the appropriate unit.

[00:38:30] Speaker 02:
With respect to the 922G counts,

[00:38:35] Speaker 02:
The WIEGA, this court's opinion in the WIEGA case is controlling.

[00:38:41] Speaker 02:
As far as I can tell, that's the only opinion where this time and place inquiry was appropriate, was relevant.

[00:38:52] Speaker 02:
In that case, this court determined that because the government had indicted on and ultimately proven at trial

[00:39:02] Speaker 02:
that the firearms were acquired at a separate time and place, multiple 922 G counts were appropriate.

[00:39:12] Speaker 02:
And so with the other cases cited by both sides, they're easily distinguishable because time and place was shown.

[00:39:23] Speaker 02:
Here, as in the WIEGA matter, that was directly at issue.

[00:39:28] Speaker 02:
Time and place was required.

[00:39:32] Speaker 02:
Finally, or excuse me, with respect to the guidelines, double counting, Judge Bress, you asked about other case law that this court has with respect to double counting.

[00:39:42] Speaker 02:
I don't have cases to cite, but generally, the case law discusses whether different harms were considered.

[00:39:49] Speaker 02:
Even if it was the same act, if there were multiple harms, then it's not impermissible to double count.

[00:39:57] Speaker 00:
Here, the 924C and the

[00:40:01] Speaker 00:
There's different harms.

[00:40:02] Speaker 00:
I'm not sure it would be double counting.

[00:40:03] Speaker 00:
I think the suggestion being made is no, it's just essentially an additional penalty for the same thing.

[00:40:08] Speaker 00:
And that's OK, because we can have that.

[00:40:11] Speaker 02:
Yes, Your Honor.

[00:40:11] Speaker 02:
And so I agree.

[00:40:12] Speaker 02:
I think here it's the exact same acts and the exact same harms.

[00:40:17] Speaker 02:
In this circuit's double counting case law, that means it was impermissible double counting, as opposed to sometimes stacking is appropriate.

[00:40:27] Speaker 02:
And here it would not be.

[00:40:29] Speaker 02:
Finally, with respect to invited error, the government did object to instruction number 27, but only on the basis that section that the in-furtherance of phrase does not need to be defined.

[00:40:44] Speaker 02:
And that was correct.

[00:40:45] Speaker 02:
The law of this circuit is that the court

[00:40:47] Speaker 02:
a district court need not define that phrase.

[00:40:50] Speaker 02:
But it did not object on the basis that defendants' proposed factors were erroneous as a matter of law.

[00:40:58] Speaker 02:
And so here, it is appropriate for this court to review on plain error.

[00:41:02] Speaker 02:
I see that I'm over my time.

[00:41:03] Speaker 02:
Thank you very much.

[00:41:04] Speaker 04:
Thank you.

[00:41:05] Speaker 04:
The case of United States versus Andres Bergara is submitted and adjourned for a session in the week.

[00:41:27] Speaker 04:
This court for this session stands adjourned.