[00:00:00] Speaker 00:
We will call the next case, 23-6204, United States versus Bautista.

[00:00:22] Speaker 02:
Thank you, Your Honor.

[00:00:23] Speaker 02:
May it please the Court?

[00:00:24] Speaker 02:
Mr. Bautista was charged in a methamphetamine conspiracy

[00:00:29] Speaker 02:
with an involvement of 500 or more grams of a mixture of substance containing methamphetamine.

[00:00:36] Speaker 02:
He went to trial.

[00:00:38] Speaker 02:
The jury was given a special verdict or a special interrogatory stating that if you find Mr. Batista guilty, what is he guilty of?

[00:00:48] Speaker 02:
Is he guilty of a conspiracy involving less than 50 grams of methamphetamine?

[00:00:53] Speaker 02:
Is he guilty of a conspiracy

[00:00:56] Speaker 02:
involving more than 50 grams, but less than 500 grams of methamphetamine?

[00:01:02] Speaker 02:
Or is he guilty of a conspiracy involving more than 500 grams of methamphetamine?

[00:01:08] Speaker 02:
And the punishment ranges as follows.

[00:01:10] Speaker 02:
Top charge, 10 to life, medium 5 to 40, and if it's at the low end, 0 to 20.

[00:01:19] Speaker 02:
The jury specifically found in their special verdict that Mr. Batista

[00:01:26] Speaker 02:
was accountable in this conspiracy for less than... And they found that beyond a reasonable doubt.

[00:01:33] Speaker 02:
That's correct, Your Honor.

[00:01:34] Speaker 02:
Beyond a reasonable doubt that he was accountable for less than 50 grams of methamphetamine, mixture of substance.

[00:01:43] Speaker 02:
We come for sentencing.

[00:01:44] Speaker 02:
The district court was bound by a statutory maximum of 20 years, and Mr. Batista was sentenced to

[00:01:54] Speaker 02:
240 months or 20 years because the district court found by preponderance of the evidence that Mr. Batista was responsible not for less than 50 grams of methamphetamine, but for just a tremendous, tremendous amount numbering in the many, many, many kilos under this converted drug weight idea.

[00:02:18] Speaker 02:
And then he was therefore at the top of the drug guidelines at a level 38.

[00:02:23] Speaker 02:
We submitted that the jury and submit here that the jury was bound by the jury's verdict that he's accountable only for less than 50 grams of methamphetamine.

[00:02:35] Speaker 00:
And why haven't we rejected this argument before in Magallanes?

[00:02:40] Speaker 00:
Is that case not dispositive of your argument?

[00:02:43] Speaker 02:
Which case?

[00:02:43] Speaker 02:
Magallanes, Your Honor?

[00:02:45] Speaker 02:
No, I don't believe it is because it's pointed out by the Ninth Circuit in the Pimentel case.

[00:02:50] Speaker 02:
They talk about Magallanes in similar cases.

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where this court and other courts have ruled that a judge at sentencing is not bound by a beyond a reasonable doubt standard.

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He can consider acquitted conduct and that the standard of proof is by preponderance of the evidence.

[00:03:09] Speaker 02:
But, Magalanes and the Keck case that's cited by the government never dealt with this specific question.

[00:03:18] Speaker 02:
as pointed out by the Ninth Circuit and Pimentel, and that specific question is this.

[00:03:24] Speaker 02:
When you have an affirmative finding by a jury as to quantity of drugs, the court is bound by that specific finding.

[00:03:36] Speaker 04:
The court is bound not to go beyond the statutory sentence for that particular crime.

[00:03:44] Speaker 02:
I understand that's the logic, Your Honor, based on

[00:03:47] Speaker 02:
based on Apprendi and following cases that Mr. Batista got a break, so to speak, because he was getting a huge break.

[00:03:57] Speaker 02:
It's a break.

[00:03:57] Speaker 02:
It's a significant break, admittedly, because he was looking at a lot sentence had he been convicted of top charge because the quantity involved in the

[00:04:07] Speaker 02:
specific offense characteristics and things of that nature would have sent him to a level 46 or 47.

[00:04:14] Speaker 04:
Well, are you quarreling with the discretion of the judge here?

[00:04:19] Speaker 02:
I am quarreling with the discretion, okay.

[00:04:20] Speaker 04:
And there was beaucoup evidence by a preponderance that he knew he lived there, he had his license there.

[00:04:32] Speaker 04:
I don't know how it got there, but it was there.

[00:04:36] Speaker 04:
And why couldn't he exercise discretion and by a preponderance find that he was involved in a whole lot more than what was proven beyond a reasonable doubt?

[00:04:48] Speaker 02:
Because the jury explicitly found in its special verdict that he was accountable for less than 50 grams of methamphetamine.

[00:04:54] Speaker 04:
Well, but that was beyond a reasonable doubt.

[00:04:56] Speaker 04:
Now we're talking a different burden of proof.

[00:04:58] Speaker 02:
I understand it's a different burden to prove, but the judge, according to the logic of the Pimentel case, should have been bound by the jury's verdict and so forth.

[00:05:07] Speaker 04:
Well, that's what the Ninth Circuit said.

[00:05:08] Speaker 02:
Yes.

[00:05:08] Speaker 04:
But we're not the Ninth Circuit.

[00:05:10] Speaker 02:
I understand.

[00:05:10] Speaker 02:
This court is not the Ninth Circuit, but for the reasons I indicated earlier to Judge Rossman, Magalanas, Keck, and Gunn, which is an unpublished case, which does not have presidential value.

[00:05:23] Speaker 02:
Of course, it has persuasive value.

[00:05:25] Speaker 02:
Don't deal with this specific question.

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whether a judge is bound at sentencing by the specific finding of a jury's verdict.

[00:05:36] Speaker 02:
Magalanes doesn't deal with that.

[00:05:38] Speaker 00:
Was the jury verdict form in Magallanes the same as it was in this case?

[00:05:45] Speaker 02:
In Magalanes?

[00:05:46] Speaker 02:
I don't know.

[00:05:47] Speaker 02:
I frankly don't know, Your Honor.

[00:05:48] Speaker 02:
I will say that the verdict form in the mental case, the Ninth Circuit, and I know we're not in the Ninth Circuit,

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But the verdict form in the Pimentel case was identical identical to the verdict form that was given here by way of special interrogatory.

[00:06:06] Speaker 02:
So here's the difference.

[00:06:08] Speaker 02:
Watts versus United States or United States versus Watts dealing with acquitted conduct said that at sentencing, notwithstanding an acquittal,

[00:06:19] Speaker 02:
A judge can use the preponderance of the evidence standard to determine what factors are relevant at sentencing and to determine what a sentence should be.

[00:06:31] Speaker 02:
This is different than just a general absence of a finding by the jury.

[00:06:38] Speaker 00:
Well, what was the finding?

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What do you understand the finding to be that would find the district court's discretion?

[00:06:45] Speaker 02:
that he is, in accordance with the jury's verdict, accountable for less than 50 grams of methamphetamine.

[00:06:52] Speaker 00:
By a preponderance of the evidence?

[00:06:54] Speaker 02:
I think the reasonable doubt standard applies because we're not just dealing with the absence of a finding.

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We're dealing with a specific affirmative finding by the jury that he's accountable for less than 50 grams of methamphetamine.

[00:07:09] Speaker 04:
So that would be my... Well, you would agree that the court

[00:07:13] Speaker 04:
Assuming the court said, okay, I'm bound by that, could still give them the full 240 months, because that's the statutory maximum.

[00:07:25] Speaker 04:
That's the statutory maximum.

[00:07:26] Speaker 04:
There's no mandatory application of guidelines anymore.

[00:07:33] Speaker 02:
That's true.

[00:07:35] Speaker 02:
But you start off with what is the base offense level?

[00:07:39] Speaker 02:
Is the base offense level based on... But if the statutory level says you can get 20 years, then the judge has the discretion to go from A to Z. He does have the discretion, but only based on proper reasoning and a proper foundation, and ignoring an affirmative jury verdict is not that.

[00:08:03] Speaker 04:
That's the question.

[00:08:04] Speaker 02:
That is the question.

[00:08:06] Speaker 04:
And the reason we distinguish a Judge Kelly... And five other jurisdictions or six other jurisdictions disagree with the Ninth Circuit.

[00:08:14] Speaker 04:
Yes.

[00:08:15] Speaker 04:
Surprised?

[00:08:17] Speaker 02:
I'm not surprised based on the way things go, Judge Kelly, not surprised at all.

[00:08:22] Speaker 02:
However, the distinction I keep making, and maybe I'm not being clear as

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There is a difference between using a preponderance standard based on the absence of a jury finding, such as an acquittal.

[00:08:35] Speaker 04:
And... Well, if he had only been charged with the one crime of less than X, and he was found guilty of that crime, they could still go beyond for other amounts that

[00:08:52] Speaker 02:
were developed during the hearing?

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I don't think that they could go by other amounts developed at the hearing.

[00:08:59] Speaker 02:
I think you're bound by the jury verdict.

[00:09:01] Speaker 02:
Okay.

[00:09:02] Speaker 02:
That's that's our position.

[00:09:04] Speaker 02:
And the Watts case, Magallanes and all that, as I said before, and as the Ninth Circuit said, incremental doesn't deal with it doesn't answer the specific question as to whether

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The court is bound by an affirmative finding of the jury, not just the absence of a finding.

[00:09:23] Speaker 02:
And as far as acquitted conduct goes, that's under attack now, presently.

[00:09:28] Speaker 02:
The Supreme Court in the McClinton case out of the Seventh Circuit recently denied certiorari in a case similar to this one.

[00:09:38] Speaker 02:
where the argument is made that acquitted conduct in any sense cannot be used to determine sentence.

[00:09:46] Speaker 02:
Now there were two or three comments from the Supreme Court on that where it stated this is an important issue that deserves further consideration.

[00:09:56] Speaker 02:
But the Watts case doesn't apply for the reasons we've stated.

[00:10:00] Speaker 02:
And yes, was the punishment range the same up to 20 years?

[00:10:05] Speaker 02:
Could he have gotten up to 20 years?

[00:10:07] Speaker 02:
Potentially, potentially, however, there's a procedural error in calculating the sentence here if in fact the district court is bound by the jury verdict.

[00:10:20] Speaker 02:
Instead of setting the base offense level at 38 based on this astronomical, astronomical quantity of drugs, the base offense level in accordance with the jury's verdict is going to be

[00:10:34] Speaker 02:
a level 22 at the maximum, not a level 38.

[00:10:39] Speaker 02:
So whether the punishment range remains the same, and of course it does with the maximum of 20 years, whether that's the case or not does not answer the question as to whether or not there was a procedural error in calculating the advisory guidelines in the first instance.

[00:10:57] Speaker 00:
To make sure I understand your argument, if we were going to write this in your favor,

[00:11:03] Speaker 00:
You wouldn't be asking us to say, because we couldn't, Magallanes is wrongly decided.

[00:11:08] Speaker 00:
We're not going to follow it.

[00:11:09] Speaker 00:
We couldn't do that.

[00:11:10] Speaker 00:
You're saying Magallanes doesn't apply here because you contend there's no affirmative finding?

[00:11:17] Speaker 02:
Yeah, there's no affirmative finding by the jury as to what quantity is.

[00:11:21] Speaker 02:
It just says that absent a jury verdict or a jury finding, the court is free by preponderance of the evidence sentencing.

[00:11:28] Speaker 00:
But there was a finding, wasn't there?

[00:11:30] Speaker 02:
There was a finding by the jury that he's accountable for less than 50 grams.

[00:11:35] Speaker 02:
There was a finding by the district court over our objection that he's accountable for much, much more.

[00:11:42] Speaker 02:
And therefore, I'm going to sentence you to the statutory maximum.

[00:11:46] Speaker 02:
But regardless of whether the statutory maximum remains the same under any scenario, there's an error initially, ab initio, or however it's pronounced, with respect to

[00:12:01] Speaker 02:
saddling Mr. Batista with all that quantity of drugs, which the jury rejected.

[00:12:08] Speaker 02:
They rejected two thirds of the government's case, yet when it comes time to sentencing, he pays the price anyway because what they failed to prove beyond a reasonable doubt and in contradiction of the jury's special interrogatory is now open season to get him again or to get him as hard as we can get it.

[00:12:29] Speaker 02:
And that just violates the Sixth Amendment.

[00:12:32] Speaker 02:
He had a right to a jury trial.

[00:12:34] Speaker 02:
The jury made its decision.

[00:12:35] Speaker 02:
The jury made a specific finding.

[00:12:38] Speaker 02:
They decided what they decided.

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And it's an affirmative finding the court can't ignore.

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So for that reason, Your Honors, we would ask that the court remand this case for re-senancing.

[00:12:50] Speaker 02:
And if there are no further questions, I'd like to reserve whatever time I got left.

[00:12:55] Speaker 03:
So you're acknowledging the relief.

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is not, requires a remand for re-sentencing at which time the court could exercise the discretion that you acknowledged in responding to Judge Kelly.

[00:13:09] Speaker 02:
Limited to.

[00:13:10] Speaker 02:
He can exercise discretion limited to holding Mr. Bautista accountable for less than 50 grams of methamphetamine.

[00:13:19] Speaker 02:
Beyond that, he can't do it.

[00:13:21] Speaker 03:
But in response to Judge Kelly's question,

[00:13:24] Speaker 03:
You said that the judge did have discretion, notwithstanding the jury's affirmative finding, to go above that.

[00:13:33] Speaker 02:
He has discretion.

[00:13:35] Speaker 02:
He has some discretion, but not when it comes to the drug quantity.

[00:13:40] Speaker 02:
So that would be my answer to the question.

[00:13:41] Speaker 02:
I didn't answer it very well, obviously, the first time around.

[00:13:45] Speaker 03:
So it's a remand for re-sentencing, but it would be remand

[00:13:50] Speaker 03:
with specific instructions to sentence him consistent with the quantities that were found by the jury.

[00:13:59] Speaker 03:
Correct.

[00:14:01] Speaker 02:
Less than 50 grams.

[00:14:02] Speaker 02:
Thank you, Your Honor.

[00:14:13] Speaker 00:
Hear from the government when you're ready.

[00:14:18] Speaker 01:
Good morning and may it please the court, Travis Leverett on behalf of the United States.

[00:14:24] Speaker 01:
As the court's heard, this case stems from a conviction following a jury trial where the jury concluded that while Mr. Bautista engaged in a drug conspiracy, the amount of controlled substances associated with him in that conspiracy were less than 50 grams.

[00:14:40] Speaker 01:
While the jury found that,

[00:14:42] Speaker 01:
The facts of this case were that a stash house associated with Mr. Batista contained approximately 300 pounds of both crystal and liquid methamphetamine.

[00:14:54] Speaker 01:
This is not the kind of case where you have one controlled by and then the DEA finds a stash house and the jury could conclude that

[00:15:04] Speaker 01:
While this amount was attributable to the defendant, this larger amount was not.

[00:15:09] Speaker 01:
There were no smaller, separate, more discreet amounts of methamphetamine involved in this case tied to Mr. Battista other than the mountain of methamphetamine that was found together in the stash house along with his various identification documents.

[00:15:25] Speaker 01:
Well, if that were the case, why did you put

[00:15:30] Speaker 04:
a jury verdict with the various different amounts involved.

[00:15:36] Speaker 01:
In my experience, Your Honor, it's standard in a drug conspiracy to have those special verdict forms.

[00:15:42] Speaker 01:
Why?

[00:15:42] Speaker 04:
If the judge can just do what he wants with a verdict of guilty, why put in various amounts?

[00:15:53] Speaker 01:
I'm not sure the logic behind that, Your Honor.

[00:15:56] Speaker 01:
I don't know if it's required or whether the court has the discretion to

[00:15:59] Speaker 01:
just X out the bottom two amounts.

[00:16:01] Speaker 03:
Well, you're doing it so you can get a conviction, at least a conviction, even if the jury doesn't buy the greater amounts.

[00:16:09] Speaker 03:
I mean, this is a conspiracy claim.

[00:16:11] Speaker 03:
That means you have to find him.

[00:16:13] Speaker 03:
He has to be found accountable for all the drugs in the house.

[00:16:20] Speaker 03:
And the jury said no on that.

[00:16:23] Speaker 03:
So isn't that why you do it?

[00:16:24] Speaker 03:
To make sure you get a conviction.

[00:16:26] Speaker 03:
with the minimum amount of less than 50.

[00:16:30] Speaker 01:
That is one benefit of that.

[00:16:31] Speaker 01:
Absolutely, Your Honor.

[00:16:32] Speaker 01:
Yes.

[00:16:36] Speaker 03:
Let me ask you this.

[00:16:41] Speaker 03:
Do you concede that Magdalena's on its face does not resolve specifically the question raised by Mr. Battista?

[00:16:55] Speaker 01:
No, Your Honor, and I've gone back and reread Maggie Annis over and over and over, and I'm still unable to discern any meaningful difference between that case and this case.

[00:17:07] Speaker 03:
Was there an affirmative finding by the fact finder in that case of lesser amount?

[00:17:18] Speaker 01:
They found the 5 to 40 amount, so I guess that's one slight difference between that case and this case is that this case involves the 0 to 20 amount less than 50 grams, whereas that one involved the 5 to 40 amount of... And was he sentenced for more than the 5 to 40 finding?

[00:17:39] Speaker 01:
He was sentenced based on the amount that the judge found and not limited.

[00:17:43] Speaker 03:
And that was more than the jury found?

[00:17:46] Speaker 03:
I believe that's correct, Your Honor, yes.

[00:17:48] Speaker 03:
And there was a special verdict form in that case, like here?

[00:17:51] Speaker 01:
I'm not certain whether it was phrased as a special verdict form or a special interrogatory following.

[00:17:57] Speaker 03:
Whichever it was, there was a specific determination by the jury of

[00:18:03] Speaker 03:
What would you say, 540?

[00:18:04] Speaker 03:
Yes, Your Honor.

[00:18:07] Speaker 03:
And the judge sentenced him based on a quantity greater than that.

[00:18:15] Speaker 01:
That's correct, Your Honor.

[00:18:16] Speaker 01:
And then that was reaffirmed by this court in Keck and again in an unpublished decision in United States versus God.

[00:18:27] Speaker 01:
As I said, I'm unable to tell any meaningful difference between that line of cases

[00:18:32] Speaker 01:
In this case here today, I acknowledge that Pimentel Lopez, if this were the Ninth Circuit, the government would be in a lot more trouble.

[00:18:41] Speaker 01:
But I just don't see how you get around the mega Yannis problem here.

[00:18:46] Speaker 00:
Do you think our cases are wrong?

[00:18:49] Speaker 01:
No.

[00:18:49] Speaker 00:
Why not?

[00:18:51] Speaker 00:
Why is the Ninth Circuit position not the right one?

[00:18:55] Speaker 01:
Well, Judge Weirich, in announcing his sentence, made the comment that

[00:19:01] Speaker 01:
in response to this argument by Mr. Battista that that's not really how jury trials work.

[00:19:06] Speaker 01:
The jury is making a finding beyond a reasonable doubt.

[00:19:09] Speaker 01:
The judge is not bound by that standard.

[00:19:11] Speaker 01:
The judge is bound by the standard of preponderance of the evidence.

[00:19:16] Speaker 01:
In this case specifically, Mr. Battista's reasoning would have required the court to take a nonsensical approach.

[00:19:24] Speaker 01:
It would have required the court to take

[00:19:26] Speaker 01:
a position that was completely inconsistent with the evidence and apply a guideline range that had almost no evidence supporting it.

[00:19:34] Speaker 01:
I don't believe that's the correct outcome.

[00:19:37] Speaker 00:
Thank you.

[00:19:40] Speaker 01:
If there are no further questions, Your Honor, I'm happy to stand down.

[00:19:44] Speaker 01:
Thank you.

[00:19:54] Speaker 03:
Mr. Autry, you are uncertain as to either a special interrogatory or an interrogatory or a special verdict underlying the Magalanis.

[00:20:07] Speaker 04:
I can't hear you.

[00:20:08] Speaker 04:
Can you speak into the microphone?

[00:20:12] Speaker 03:
What's your response to the proposition that Magalanis is directly on point, that the sentencing judge used quantities greater than the jury found?

[00:20:23] Speaker 02:
My response, Your Honor, would be based on the reasoning of the Pimentel Lopez case, and I'm going to quote from our brief here.

[00:20:31] Speaker 02:
The court in Pimentel Lopez noted that some of the other courts of appeal, including the 10th Circuit and Magalanes, quote, seem to have held that a jury's special verdict finding that the quantity of drugs involved in the crime is less than a particular amount did not preclude the judge from finding a greater quantity.

[00:20:51] Speaker 02:
for purposes of sentencing.

[00:20:54] Speaker 02:
The Ninth Circuit noted that Magalanes, in similar cases, quote, did not directly address the argument raised by Pimentel-Lopez, and it's the argument we raise here, that the affirmative finding by the jury that the quantity of drugs involved was less than a specific amount precluded a contradictory finding by the district judge during sentencing.

[00:21:17] Speaker 02:
So that would be my answer.

[00:21:20] Speaker 02:
And I see my time's up.

[00:21:21] Speaker 02:
Thank you, Your Honor.

[00:21:25] Speaker 00:
Thank you, counsel, for your arguments.

[00:21:27] Speaker 00:
The case will be submitted.

[00:21:28] Speaker 00:
We'll call our next