[00:00:00] Speaker 01:
Good morning everyone and welcome to the Ninth Circuit.

[00:00:08] Speaker 01:
At this moment, we wanted to commemorate, really in observance of 9-11, a moment of silence.

[00:00:18] Speaker 01:
So if you wouldn't mind, we'd like to take a moment of silence at this point.

[00:00:40] Speaker 01:
Thank you.

[00:00:43] Speaker 01:
And again, I wanted to thank, today we're joined by Judge Fitzgerald, who is joining us from the Central District of California.

[00:00:56] Speaker 01:
I want to say thank you again for your help all week.

[00:01:00] Speaker 01:
We appreciate your help.

[00:01:02] Speaker 02:
Well, thank you for the invitation, Judge Mendoza.

[00:01:05] Speaker 01:
Let's see.

[00:01:06] Speaker 01:
We have a number of cases today, two of which are submitted on the briefs.

[00:01:11] Speaker 01:
The first matter that's submitted on the briefs is Patel versus Merrick Gardland.

[00:01:16] Speaker 01:
That's 23-19-04.

[00:01:16] Speaker 01:
That matter is submitted on the briefs.

[00:01:20] Speaker 01:
Next matter is 23-32-38.

[00:01:22] Speaker 01:
That's Gonzales-Escobedo versus Merrick Gardland.

[00:01:27] Speaker 01:
That matter is also submitted on the briefs.

[00:01:30] Speaker 01:
That's 23-32-38.

[00:01:33] Speaker 01:
The first matter that we're going to hear oral argument on is United States versus Sanchez Cruz.

[00:01:41] Speaker 01:
And let's see, Mr. Ablaz, whenever you're ready.

[00:01:46] Speaker 03:
Thank you, Your Honor.

[00:01:47] Speaker 03:
John Ballas on behalf of the defendant, Fidel Sanchez Cruz.

[00:01:51] Speaker 03:
I intend to reserve two minutes for rebuttal.

[00:01:55] Speaker 01:
If you can keep track of your time.

[00:01:58] Speaker 03:
I will.

[00:01:59] Speaker 03:
Mr. Sanchez Cruz pled guilty to a large marijuana conspiracy in the Shasta Trinity National Forest.

[00:02:07] Speaker 03:
This is a sentencing appeal.

[00:02:09] Speaker 03:
The first issue is that the district court erred in applying a four-level enhancement for a role in the offense because the evidence did not show that he was a leader or organizer of the marijuana offenses.

[00:02:22] Speaker 03:
The preponderance of the evidence must show that the defendant was an organizer, a leader, not merely that he was more culpable than others in the offense.

[00:02:31] Speaker 01:
Counsel, can you move to the second issue?

[00:02:33] Speaker 01:
I'm interested and I have some questions about that, and that is the enhancement as to the firearm.

[00:02:41] Speaker 01:
I guess my question to you is this.

[00:02:44] Speaker 01:
This was not a case where there was a plea agreement, was there?

[00:02:46] Speaker 03:
No plea agreement.

[00:02:48] Speaker 01:
So there aren't stipulated facts, correct?

[00:02:50] Speaker 01:
Correct.

[00:02:51] Speaker 01:
So what facts, is my understanding that the district court judge based his decision to apply the two level enhancement of firearm based upon what was in the pre-sentence investigation report, would that be accurate?

[00:03:06] Speaker 03:
Yes.

[00:03:06] Speaker 01:
And what was in the pre-sentence investigation report as a basis for his conclusion that the two-level enhancement should apply were two things that he stated.

[00:03:18] Speaker 01:
Number one was statements from the daughter, and second,

[00:03:22] Speaker 01:
The judge stated, but perhaps incorrectly, that the ID was found in the room where the father or Mr. Sanchez Cruz stayed.

[00:03:33] Speaker 01:
That fact was incorrect.

[00:03:35] Speaker 01:
Is that a fair understanding?

[00:03:37] Speaker 03:
Yeah, I think it was found in the residence, but not the bedroom.

[00:03:40] Speaker 01:
Okay, well, why isn't that enough?

[00:03:41] Speaker 01:
Why isn't it enough that he stayed in that room and therefore the firearm was found in that room, the 20 gauge unloaded, I believe, unloaded shotgun was found in that room?

[00:03:54] Speaker 03:
Well, two reasons is that there were multiple people at the residence, his ex-wife, children, other people who could visit.

[00:04:05] Speaker 03:
Our position is that he did stay there at times, but he had another residence.

[00:04:11] Speaker 03:
There was no fingerprints or anything.

[00:04:14] Speaker 04:
Do we know whether anybody else stayed in the bedroom?

[00:04:16] Speaker 03:
Is there any testimony on that?

[00:04:18] Speaker 03:
There's no testimony.

[00:04:21] Speaker 03:
There was identification found from other people.

[00:04:24] Speaker 04:
One was his girlfriend who apparently stayed with him in the bedroom.

[00:04:28] Speaker 04:
There were other items that were likely affiliated with him that were found in the bedroom, right?

[00:04:33] Speaker 04:
Additional drugs?

[00:04:34] Speaker 03:
There was four pounds of marijuana.

[00:04:37] Speaker 03:
And a scale.

[00:04:38] Speaker 03:
A scale.

[00:04:39] Speaker 03:
Other evidence.

[00:04:42] Speaker 03:
In our second position, though, is... Excuse me, counsel.

[00:04:44] Speaker 02:
Also, where was his shirt found?

[00:04:47] Speaker 02:
I believe that there was a reference in the record to a shirt that appeared to be the shirt that he was wearing during the surveillance of the marijuana farm.

[00:04:56] Speaker 03:
I'd have to look at that.

[00:04:58] Speaker 03:
I know it was found in the residence.

[00:05:00] Speaker 03:
I don't remember if it was in the bedroom or not.

[00:05:04] Speaker 03:
But there was some evidence that he stayed in the room.

[00:05:07] Speaker 03:
There was evidence that other people were at the residence.

[00:05:11] Speaker 03:
There was no specific evidence he ever used the shotgun, no fingerprints.

[00:05:15] Speaker 03:
And our other argument is that the shotgun was unloaded.

[00:05:20] Speaker 03:
And there's no real evidence connecting it to the marijuana offenses other than its proximity to the room that had... Well, is there anything in the record?

[00:05:30] Speaker 01:
And I just want to make sure I understand the facts correctly.

[00:05:33] Speaker 01:
Is there anything that we can glean from the record that indicates where in that room the shotgun was located?

[00:05:40] Speaker 03:
Anything at all?

[00:05:45] Speaker 03:
No, I mean, the only thing that's in the record is really the precincts report.

[00:05:51] Speaker 03:
Correct.

[00:05:53] Speaker 03:
And it just says in the bedroom.

[00:05:57] Speaker 01:
So if we made a rule that said that so long as a firearm is in a room where a person resides, that is sufficient to establish possession, what would be wrong with that?

[00:06:09] Speaker 03:
I think it's, I mean, it's a very fact-specific type of inquiry, but in this case, where there's multiple people in the house, where he stayed there at times, but not all the time.

[00:06:21] Speaker 01:
But he stayed there.

[00:06:21] Speaker 01:
I mean, his daughter testified, or excuse me, she was interviewed and indicated that she, that he stayed there and his girlfriend stayed there.

[00:06:30] Speaker 01:
Why shouldn't that be enough?

[00:06:32] Speaker 03:
Well, because there's no evidence he ever had used it, possessed it.

[00:06:37] Speaker 03:
We don't know where the shotgun was found.

[00:06:40] Speaker 03:
It may have been in a closet.

[00:06:42] Speaker 04:
Anything that would indicate how large this residence was?

[00:06:46] Speaker 04:
I mean, it's found in a bedroom.

[00:06:48] Speaker 04:
I mean, this is probably not a very big bedroom.

[00:06:52] Speaker 03:
I don't know anything about the size of the house.

[00:06:55] Speaker 03:
There were more than one bedroom.

[00:06:57] Speaker 01:
Would we have to speculate then to determine whether or not it was a small bedroom or not?

[00:07:04] Speaker 01:
I mean, I guess we would have to speculate, wouldn't we, to determine if that bedroom was small, large, if it was in the closet, under the bed, in a hidden compartment, in a bag, in some drawer somewhere.

[00:07:17] Speaker 01:
I mean, we have to speculate to determine where that gun was, that unloaded shotgun, correct?

[00:07:27] Speaker 03:
Our position is that the evidence is not sufficient to show that he possessed a firearm.

[00:07:35] Speaker 03:
The record says only that it was found in a bedroom.

[00:07:38] Speaker 04:
It doesn't say where in the bedroom it was found.

[00:07:40] Speaker 04:
Could the district court take into account the four pounds of marijuana and the scale and the seeds?

[00:07:46] Speaker 04:
Doesn't this all fall in the same category that it's in the bedroom, other people had access to the bedroom, so it isn't necessarily his?

[00:07:53] Speaker 03:
Well, that's correct.

[00:07:54] Speaker 03:
The district court didn't specifically refer to the marijuana or the seeds.

[00:07:58] Speaker 03:
It did refer to the hunting, to the rifle, I mean the shotgun.

[00:08:03] Speaker 03:
It didn't make any specific reference.

[00:08:05] Speaker 04:
But it did seem to suggest that he was affiliated with the bedroom.

[00:08:08] Speaker 04:
Now, isn't that, would that be error for the same reason that you're describing the gun?

[00:08:13] Speaker 04:
That is, other people had access to that bedroom?

[00:08:15] Speaker 03:
I think it would be an error.

[00:08:17] Speaker 03:
That's our position.

[00:08:17] Speaker 03:
It's error because other people had access.

[00:08:19] Speaker 04:
So we can't, we don't know that the marijuana belonged to him.

[00:08:23] Speaker 03:
That's correct.

[00:08:23] Speaker 04:
Or the scale.

[00:08:25] Speaker 03:
That's correct.

[00:08:26] Speaker 04:
The ID is yes.

[00:08:28] Speaker 04:
Yes.

[00:08:28] Speaker 01:
Well, but the ID was not found in the room, correct?

[00:08:32] Speaker 04:
It was found elsewhere in the residence.

[00:08:34] Speaker 01:
I believe it was found elsewhere in the residence.

[00:08:37] Speaker 01:
So we know it was error for the judge when imposing the two level enhancement to indicate that the ID was found in the room.

[00:08:49] Speaker 03:
Correct.

[00:08:50] Speaker 01:
That part of it was an error.

[00:08:51] Speaker 01:
Whether or not that's enough is another question, but that part was an error.

[00:08:57] Speaker 01:
Do you understand that to be the case?

[00:08:59] Speaker 03:
Yes, and that would be considered a clear error and the court could remand for the court to make a redetermination.

[00:09:09] Speaker 02:
Council, you're sort of by mentioning the remand, you're raising something here.

[00:09:14] Speaker 02:
Is there anything in the record to suggest

[00:09:16] Speaker 02:
that the district court shows that this sentence for reasons other than it was the low end of the guidelines range, which had there been a plea agreement that might very well have been the plea agreement, but as you said, there's no plea agreement here.

[00:09:32] Speaker 02:
It seems to me that under Booker, the district court could have imposed this sentence completely independent of either of the firearms because it made a distinction between Mr. Sanchez Cruz and the co-defendants in their 120-month sentence.

[00:09:48] Speaker 02:
So is there anything that happened below that would be indicative of what the district court's intentions were in that regard?

[00:09:56] Speaker 03:
Well, the court imposed a sentence at the low end of the guideline range.

[00:10:00] Speaker 03:
It was 135 to 151.

[00:10:03] Speaker 03:
If the two-level enhancement for possession of a firearm is error, you get down to the 120-month mandatory minimum.

[00:10:12] Speaker 04:
And depending on... If the district court was still inclined to impose the 120, but it would not be error for the district court to impose 135, would it?

[00:10:21] Speaker 03:
It would probably be within the range.

[00:10:29] Speaker 04:
I think Judge Fitzgerald's point is, with or without the enhancement,

[00:10:34] Speaker 04:
You're well within the range.

[00:10:38] Speaker 03:
I'm not arguing that it's like substantively unreasonable.

[00:10:40] Speaker 03:
I mean, the court could consider all the factors and potentially impose a sentence.

[00:10:48] Speaker 03:
But the general rule is that if it's procedural error, a guideline error is procedural error, and that is a reversible error.

[00:10:59] Speaker 01:
Council, we've peppered you with questions.

[00:11:01] Speaker 01:
You have 47 seconds.

[00:11:02] Speaker 01:
Do you want to save the remainder of the time?

[00:11:04] Speaker 01:
Yes, thank you.

[00:11:04] Speaker 01:
All right.

[00:11:10] Speaker 01:
Morning, Mr. Spencer.

[00:11:12] Speaker 00:
Good morning.

[00:11:12] Speaker 00:
May it please the court, David Spencer for the United States.

[00:11:15] Speaker 00:
I'd like to begin by just briefly answering Judge Fitzgerald's question about where the shirt was found.

[00:11:20] Speaker 00:
The shirt was found in the same room as the shotgun and the marijuana that's at ER 107, and that was a shirt that

[00:11:26] Speaker 00:
Sanchez Cruz was seen wearing at the grow site two and a half.

[00:11:28] Speaker 01:
Can you point me to the ER record where established where the firearm was actually located in that room?

[00:11:34] Speaker 00:
It would be PSR paragraph 16.

[00:11:37] Speaker 00:
It does not say where within the room it was found.

[00:11:39] Speaker 00:
It just says that the shotgun was found.

[00:11:41] Speaker 01:
That's my specific question.

[00:11:42] Speaker 01:
Where in the room is there any evidence indicating in any of the record indicating that where that firearm was found?

[00:11:49] Speaker 00:
Not where within the room, just that it was in the room, Your Honor.

[00:11:51] Speaker 01:
And you agree that it was error for the judge to indicate that the basis for the two-level enhancement was that the ID was found in the room.

[00:12:00] Speaker 01:
That was error, correct?

[00:12:01] Speaker 00:
The district court made a slight mistake in stating that the wallet and the Mexican passport were found in the room with the shotgun.

[00:12:08] Speaker 00:
In fact, they were found at the residence.

[00:12:10] Speaker 00:
I don't think that matters, though, because there's ample evidence that Mr. Sanchez Cruz had been named.

[00:12:15] Speaker 01:
Well, let's talk about that evidence, the evidence that he was in that room.

[00:12:18] Speaker 01:
And it's not evidence of, in general, possession.

[00:12:22] Speaker 01:
It's possession of that firearm.

[00:12:24] Speaker 01:
So what evidence in the record is it that he possessed that firearm?

[00:12:31] Speaker 00:
Yes, Your Honor.

[00:12:31] Speaker 00:
So the standard is there has to be sufficient evidence to support the inference that the defendant has dominion and control over the firearm.

[00:12:39] Speaker 00:
There's several categories of evidence.

[00:12:41] Speaker 00:
First is, as this court's already referenced, the daughter's statement that Mr. Sanchez Cruz stayed in that room, that that was his room, that sometimes his girlfriend stayed there.

[00:12:50] Speaker 00:
There's also the shirt that was his shirt he was wearing at the marijuana grill right there in the same bedroom.

[00:12:55] Speaker 00:
There's the marijuana itself, the packaged marijuana, the seeds.

[00:12:59] Speaker 00:
the cultivation tools, the materials for distributing it, the packaging materials, the scale.

[00:13:04] Speaker 00:
All of that is evidence the district court could rely on that this was Sanchez Cruz's room because he was the one involved in the marijuana grow operation, not his innocent family members.

[00:13:12] Speaker 01:
I guess what do we do with comment 11 of the sentencing guidelines?

[00:13:16] Speaker 01:
Comment 11 says to us that

[00:13:20] Speaker 01:
that once you establish possession, then you apply the enhancement, but you wouldn't apply it in this example that they gave us.

[00:13:31] Speaker 01:
For example, the enhancement would not be applied if the defendant arrested at a defendant's residence had an unloaded hunting rifle in the closet.

[00:13:42] Speaker 01:
That seems to suggest, certainly, that we need to know where the

[00:13:47] Speaker 01:
the firearm is located in order for us to establish the possession.

[00:13:52] Speaker 01:
At least that's what that comment seems to suggest, doesn't it?

[00:13:55] Speaker 00:
I think that comment is distinguishable for a couple of reasons, Your Honor.

[00:13:58] Speaker 00:
One, it calls it a hunting rifle.

[00:13:59] Speaker 00:
It's in the common.

[00:14:01] Speaker 00:
It's in a different locked area here.

[00:14:03] Speaker 00:
It's a shotgun.

[00:14:04] Speaker 00:
It's in the same room as drugs.

[00:14:07] Speaker 00:
The court could reasonably infer, and it certainly wasn't clear.

[00:14:09] Speaker 01:
Are you suggesting that a shotgun is not a hunting firearm?

[00:14:14] Speaker 00:
It could be, but it's fact-specific and it's context-specific, and here it's with valuable drugs, and the court could infer that it was there to protect them.

[00:14:23] Speaker 01:
But going back to the comment, though, the comment seems to suggest that in that situation, that the sentencing guideline in the guidelines, comment 11 says, hey, this would not apply if a firearm is in a closet and it's unloaded.

[00:14:39] Speaker 01:
Here we have an unloaded shotgun.

[00:14:42] Speaker 01:
We don't know where that's located, yet this judge applied this enhancement.

[00:14:49] Speaker 01:
Wouldn't it make sense to just send it back, let the judge determine whether or not this is sufficient for them to determine that he possessed it?

[00:15:00] Speaker 00:
No, Your Honor, and the key difference between this and the shotgun is the presence of the drugs in the room.

[00:15:04] Speaker 00:
Those are valuable drugs.

[00:15:06] Speaker 00:
The court could reasonably infer it was there to protect them.

[00:15:10] Speaker 01:
regardless of where they were located.

[00:15:12] Speaker 01:
So if they were located in a hidden compartment, that would be sufficient.

[00:15:16] Speaker 01:
If the drugs were located in a hidden compartment, if the gun was located in a hidden compartment, if the drugs were located underneath the bed, if the gun was located in a closed drawer somewhere, that's enough.

[00:15:33] Speaker 00:
It's very fact-specific, Your Honor, and I'd read the Note 11 comment to be saying that you have a house where there's not drugs right there.

[00:15:41] Speaker 00:
You just have a hunting rifle in the closet.

[00:15:43] Speaker 00:
That's not sufficient, but that's not this case.

[00:15:46] Speaker 00:
And here we're on an abusive discretion standard of review.

[00:15:48] Speaker 01:
And so the question is... So we don't know where that rifle is.

[00:15:51] Speaker 01:
That shotgun, is that correct?

[00:15:53] Speaker 01:
We know it's in the room.

[00:15:56] Speaker 01:
Do you know where the... Do you actually know?

[00:15:58] Speaker 01:
Maybe it's not in the record, but do you know where the rifle was or the shotgun was located?

[00:16:02] Speaker 00:
My memory from the reports in the photographs is that it was leaning against the wall in that bedroom, but that's not in the record.

[00:16:07] Speaker 02:
As you know, it's not on the record.

[00:16:09] Speaker 02:
Okay.

[00:16:09] Speaker 02:
Thank you.

[00:16:10] Speaker 02:
Council.

[00:16:10] Speaker 02:
What is the situation with the papers?

[00:16:13] Speaker 02:
You suggested in your brief that the papers were not indicative of the access of others to either the residents or the room.

[00:16:21] Speaker 02:
And what's your basis for that assertion?

[00:16:23] Speaker 00:
Yes, Your Honor, it's discussed in detail in the brief, but if you look at some of the photographs, it's mostly vehicle registration records, vehicle maintenance records.

[00:16:33] Speaker 00:
Some of those vehicles, while they're in other people's names, are actually vehicles that Mr. Sanchez Cruz was using in furtherance of the conspiracy to go and take supplies and visit the marijuana grow.

[00:16:44] Speaker 00:
And so what it actually shows is those are his documents.

[00:16:46] Speaker 00:
He controls cars that are registered in other people's names.

[00:16:51] Speaker 00:
One of the things they point to is the girlfriend's ID.

[00:16:53] Speaker 00:
Well, that's evidence that Mr. Sanchez Cruz also stayed in the room with his girlfriend, like the daughter said.

[00:16:59] Speaker 04:
There were two vehicles found at the residence?

[00:17:01] Speaker 04:
Correct, Your Honor.

[00:17:02] Speaker 04:
Which ones?

[00:17:04] Speaker 00:
I don't remember, and I don't think it says that.

[00:17:06] Speaker 00:
It's PSR paragraph 16, but there were documents or indicia in Mr. Sanchez Cruz's name found in each of the vehicles.

[00:17:12] Speaker 02:
What about the pistol that was later, as you put in your brief, later actually being 15 months later at the marijuana farm, and then the .40 caliber pistol, and then the rifle, which I guess the PSR says was seen during the surveillance.

[00:17:32] Speaker 02:
You argue that that could be supportive of the enhancement even though the district court didn't rely on the 40 caliber pistol.

[00:17:42] Speaker 02:
What's your basis for arguing that the pistol could also support the enhancement?

[00:17:48] Speaker 00:
Yes, Your Honor.

[00:17:48] Speaker 00:
Of course, this court can affirm on any basis supported by the record.

[00:17:51] Speaker 00:
That's the Nichols case.

[00:17:53] Speaker 00:
Um, PSR paragraph 37 cited both the shotgun that the district court explicitly relied on, but also the 40 caliber handgun that was found at the grow as another independent sufficient basis to apply the two level enhancement.

[00:18:06] Speaker 00:
Really the only argument that the defense has made in this court or below in his formal objections that the pistol should not apply was that it was found 15 months later.

[00:18:15] Speaker 00:
The problem with that is as the PSR notes and as the district court found at ER 48, there was actually cell phone evidence from one of the co-defendants in the grow that showed the co-defendants actually physically possessing that pistol in the grow at the time of the conspiracy among the marijuana plants.

[00:18:33] Speaker 02:
Well, that might be sufficient for the co-defendants, but then what's the basis for attributing that possession to Mr. Sanchez-Cruz here?

[00:18:42] Speaker 00:
Two bases, Your Honor.

[00:18:43] Speaker 00:
The first is there's sufficient evidence that he had dominion and control over the items at the grow because he set up the grow, he supplied it, and he visited at planting season, harvest season.

[00:18:56] Speaker 00:
He was the organizer of all the activity, and so there's sufficient basis he had dominion and control of the items there.

[00:19:02] Speaker 00:
Second, it's also within his relevant conduct under Sentencing Guidelines 1B1.3 as argued in the brief.

[00:19:08] Speaker 00:
It's a three-part test.

[00:19:10] Speaker 00:
The first two are that it's within the scope of and in furtherance of the conspiracy.

[00:19:15] Speaker 00:
Here it was because it's there to protect the valuable marijuana plants.

[00:19:19] Speaker 00:
And then the third element is that it's reasonably foreseeable to Sanchez Cruz.

[00:19:24] Speaker 00:
Here it was because it's

[00:19:27] Speaker 00:
common for marijuana traffickers to possess firearms to protect their products.

[00:19:31] Speaker 00:
That's the butcher and ferryman cases cited in our brief.

[00:19:42] Speaker 00:
And unless the court has any further questions, I'd ask the court to affirm both of the sentencing enhancements.

[00:19:47] Speaker 01:
Any other questions?

[00:19:49] Speaker 01:
I have no further questions.

[00:19:50] Speaker 01:
All right.

[00:19:51] Speaker 01:
Thank you very much.

[00:19:51] Speaker 00:
Thank you.

[00:19:56] Speaker 03:
Just two things.

[00:19:58] Speaker 03:
One, response to the court's question at paragraph 16, it just says there were two vehicles located at the residence.

[00:20:05] Speaker 03:
It doesn't say which two vehicles.

[00:20:08] Speaker 03:
It doesn't identify which ones.

[00:20:10] Speaker 04:
I think he used four different vehicles up at the site.

[00:20:13] Speaker 04:
There was a Honda, Lexus, a Mercedes, and a Silverado.

[00:20:18] Speaker 03:
Or different vehicles were at the site, yes.

[00:20:20] Speaker 03:
My other point was that the government made the same argument regarding the pistol at the marijuana garden that was found 15 months later.

[00:20:29] Speaker 03:
The defense objected.

[00:20:32] Speaker 03:
The district court specifically did not make a finding of possession with respect to that pistol.

[00:20:38] Speaker 03:
It only found that the finding of possession with respect to the shotgun in the residence.

[00:20:48] Speaker 01:
All right, any additional questions?

[00:20:50] Speaker 01:
All right, thank you, sir.

[00:20:53] Speaker 01:
The case of United States versus Sanchez Cruz is submitted.

[00:20:59] Speaker 01:
We thank counsel for your presentation.

[00:21:01] Speaker 01:
Thank you very much.