Filed: Dec. 05, 2007
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 06-10711 Plaintiff-Appellee, v. D.C. No. CR-06-00010-RMW SALVADOR MACIAS-VALENCIA, OPINION Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding Submitted October 19, 2007* San Francisco, California Filed December 5, 2007 Before: Robert R. Beezer, Stephen S. Trott, and Susan P. Graber, Circuit Judge
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 06-10711 Plaintiff-Appellee, v. D.C. No. CR-06-00010-RMW SALVADOR MACIAS-VALENCIA, OPINION Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding Submitted October 19, 2007* San Francisco, California Filed December 5, 2007 Before: Robert R. Beezer, Stephen S. Trott, and Susan P. Graber, Circuit Judges..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 06-10711
Plaintiff-Appellee,
v. D.C. No.
CR-06-00010-RMW
SALVADOR MACIAS-VALENCIA,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Submitted October 19, 2007*
San Francisco, California
Filed December 5, 2007
Before: Robert R. Beezer, Stephen S. Trott, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
15985
UNITED STATES v. MACIAS-VALENCIA 15987
COUNSEL
Rommel Bondoc, San Francisco, California, for the
defendant-appellant.
John N. Glang, Assistant United States Attorney, San Jose,
California, for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Does the mandatory minimum sentence of 10 years, pre-
scribed by 21 U.S.C. § 841(b)(1)(A)(viii), apply to a convic-
tion for conspiracy with intent to distribute, and attempted
possession with intent to distribute, 50 grams or more of
methamphetamine, even when no actual contraband was
involved in the commission of the offense? Joining the Sixth
Circuit, we answer “yes.”
The facts are not in dispute. Drug Enforcement Administra-
tion (“DEA”) agents arrested Defendant Salvador Macias-
Valencia and his brother as part of a reverse sting operation.
“Reverse sting” refers to the sale or purported sale of drugs
or other contraband by a government agent to the target of an
investigation. United States v. Franco, 484 F.3d 347, 349 n.1
(6th Cir. 2007).
15988 UNITED STATES v. MACIAS-VALENCIA
During the operation, Defendant agreed to buy two pounds
of methamphetamine from an undercover DEA agent. The
purchase was to occur in two transactions of one pound each,
so that Defendant could sell the first pound of methamphet-
amine before buying the second. Agents arrested Defendant
and his brother after they arrived at the prearranged meeting
place with more than $4,600 in cash and contacted the under-
cover DEA agent to complete the first transaction. No
methamphetamine was present during the investigation or
arrest.
A grand jury indicted Defendant on two counts: (1) in vio-
lation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846,
he “did knowingly and intentionally conspire with other per-
sons . . . to possess with intent to distribute . . . 50 grams or
more of methamphetamine"; and (2) in violation of the same
statutes, he “did knowingly and intentionally attempt to pos-
sess with intent to distribute . . . 50 grams or more of metham-
phetamine.” Defendant pleaded guilty to both counts.
During the plea hearing, and in connection with his sen-
tencing, Defendant argued that the statutory minimum sen-
tence should not apply because no actual contraband was
involved in the commission of the offenses. The district court
rejected that theory and sentenced Defendant to two concur-
rent 120-month sentences, one for each offense. The court
stated that, in the absence of the statutory requirement, the
court might have selected a lesser sentence under the Sentenc-
ing Guidelines. Defendant brings this timely appeal, again
challenging the applicability of the mandatory minimum sen-
tence. We review de novo this question of statutory interpreta-
tion, United States v. Valencia-Roldan,
893 F.2d 1080, 1082
(9th Cir. 1990), and affirm.
[1] We begin with the established proposition that a convic-
tion under § 846 “carries with it the same mandatory mini-
mum sentence as a conviction for the corresponding
substantive offense under section 841.” United States v.
UNITED STATES v. MACIAS-VALENCIA 15989
Dabdoub-Canez, 961 F.2d 836, 838 (9th Cir. 1992) (per
curiam). But a conviction of the substantive offense requires
proof that a defendant knowingly possessed a controlled sub-
stance and that the defendant had the intention to distribute
that controlled substance. 21 U.S.C. § 841(a); United States v.
Lopez,
477 F.3d 1110, 1113 (9th Cir.), cert. denied,
128 S. Ct.
131 (2007). Defendant reasons from the intersection of those
two principles that the mandatory minimum sentence that oth-
erwise might be triggered for an offense under § 846 cannot
apply to him because there was, in fact, no methamphetamine
for him to possess or distribute. Even though he admits that
he properly stands convicted of the crimes of conspiracy and
attempt, he asserts that imposition of the mandatory minimum
sentence requires an additional element: the involvement of
actual contraband.
An analysis of the statutes fails to bear out Defendant’s the-
sis. See United States v. Buckland,
289 F.3d 558, 564-65 (9th
Cir. 2002) (en banc) (stating that the starting point for inter-
preting a statute is its text). Section 846 provides:
Any person who attempts or conspires to commit
any offense defined in this subchapter shall be sub-
ject to the same penalties as those prescribed for the
offense, the commission of which was the object of
the attempt or conspiracy.
The object of the attempt and conspiracy in this case was the
commission of the substantive offense defined in 21 U.S.C.
§ 841(a)(1), which makes it “unlawful for any person know-
ingly or intentionally . . . to . . . possess with intent to . . . dis-
tribute . . . a controlled substance.” The penalties for violating
§ 841(a)(1) depend on the type and quantity of the controlled
substance. Section 841(b)(1)(A)(viii) requires:
[A]ny person who violates subsection (a) . . . shall
be sentenced as follows:
15990 UNITED STATES v. MACIAS-VALENCIA
(1)(A) In the case of a violation . . .
involving—
....
(viii) 50 grams or more of methamphet-
amine . . . ;
such person shall be sentenced to a term of imprison-
ment which may not be less than 10 years or more
than life . . . .
[2] The statutory text is clear. The same penalty that Con-
gress has prescribed for a substantive controlled substance
offense applies to any attempt or conspiracy to accomplish
that offense. By definition, conspiracy and attempt are incho-
ate crimes that do not require completion of the criminal
objective. See United States v. Penagos, 823 F.2d 346, 348
(9th Cir. 1987) (explaining the elements of a conspiracy);
United States v. Morales-Perez,
467 F.3d 1219, 1222 (9th Cir.
2006) (discussing the elements of an attempt).
The legislative history accords completely with the text.
See
Buckland, 289 F.3d at 564-65 (holding that unambiguous
text must be respected in the absence of clearly expressed and
contrary legislative intent). In 1980, the Supreme Court exam-
ined an earlier version of § 846 that included different word-
ing. Bifulco v. United States,
447 U.S. 381, 398 (1980). The
Court held that a sentence under the earlier version had
exceeded the statutory maximum because the statute limited
the maximum permissible sentence under § 846 to the manda-
tory minimum sentence in § 841(b).
Bifulco, 447 U.S. at 400;
cf. United States v. Maree,
934 F.2d 196, 200-01 (9th Cir.
1991) (holding that the former version of § 846 imposed no
statutory minimum), abrogated on other grounds by United
States v. Adams,
432 F.3d 1092 (9th Cir. 2006). The Court
invited Congress to amend the law if it did not intend that
result.
Bifulco, 447 U.S. at 401.
UNITED STATES v. MACIAS-VALENCIA 15991
In 1988, Congress did amend § 846 to ensure that the pen-
alties thereunder would be identical to the penalties for paral-
lel substantive offenses under § 841(a). The Anti-Drug Abuse
Act of 1988, Pub. L. No. 100-690, § 6470(a), 102 Stat. 4181,
4377. Following the 1988 amendment, the Seventh Circuit
explained, “congressional intent is now clear: ‘[A]ny penalty
that may be imposed for a substantive drug offense may be
imposed for [a] conspiracy to commit that offense.’ ” United
States v. McNeese, 901 F.2d 585, 602 n.6 (7th Cir. 1990)
(alterations in original) (quoting 134 Cong. Rec. S17,366
(daily ed. Nov. 10, 1988)), overruled on other grounds by
United States v. Nance,
236 F.3d 820 (7th Cir. 2000); see also
Dabdoub-Canez, 961 F.2d at 838 (holding that, after the 1988
amendment, the sentence for an offense under § 846 matches
the sentence for a corresponding offense under § 841(a)).
The Sixth Circuit has faced a situation like the one that we
consider here. It upheld a mandatory minimum sentence
under § 841(a) following a conviction under § 846 even
though no actual contraband was involved in the offense.
United States v. Kottmyer,
961 F.2d 569, 574 (6th Cir. 1992).
Kottmyer stood convicted of both attempt and conspiracy
to possess cocaine with intent to distribute.
Id. at 571. A gov-
ernment agent brought two kilograms of pure baking soda to
the meeting that led to Kottmyer’s arrest.
Id. Kottmyer argued
that he was not subject to the mandatory minimum sentence
because, had the transaction continued, he would have taken
delivery of a legal substance, baking soda.
Id. at 574. The
Sixth Circuit disagreed and held that the statutory minimum
sentence applied. Had Kottmyer taken delivery of the baking
soda, he still would have been guilty of conspiracy and
attempt.
Id. “Therefore, it does not matter whether the pack-
ages . . . contained pure cocaine, pure baking soda, a mixture,
or whether they even existed at all.”
Id. (emphasis added). We
agree with the Sixth Circuit.1
1
We also note the odd result that Defendant’s argument would have. In
a reverse sting, government agents would have to possess and be prepared
15992 UNITED STATES v. MACIAS-VALENCIA
[3] In support of their respective positions, the parties rely
on dueling dicta from our court. See Barapind v. Enomoto,
400 F.3d 744, 750-51 (9th Cir. 2005) (en banc) (per curiam)
(describing the concept of dictum and holding that an issue
was not dictum because it had been “presented for review”
and decided). But we have not previously addressed the issue
whether a mandatory minimum sentence under § 841(b)
applies to a conviction under § 846 in the absence of actual
contraband.
Defendant points to a comment in United States v. Steward,
16 F.3d 317, 322 (9th Cir. 1994), which expressed sympathy
for a potential argument like his. But the district court had not
imposed a mandatory minimum sentence on Steward; instead,
it had used only the Sentencing Guidelines.
Id. So the validity
of such a minimum was not, and could not have been, an issue
on review. Indeed, our use of the subjunctive, “we would
agree,” in nodding to Steward’s argument suggests that we
knew that we were not addressing, and that we could not
address, Steward’s claim that the mandatory minimum should
not apply.
The government’s argument that United States v. Myers,
993 F.2d 713 (9th Cir. 1993), controls must fail for the same
reason. Myers claimed that the district court improperly
imposed a 10-year minimum sentence under § 841(b) but, in
fact, the district court utilized only the Sentencing Guidelines.
We explained that the statutory minimum “does not appear to
have had any effect” on the sentence imposed.
Id. at 715.
Clearly, any passing remark about a sentence not imposed was
dictum.
to deliver actual contraband in order to trigger the mandatory minimum
sentence, even though such possession is not required to obtain a convic-
tion for conspiracy or attempt. We do not believe that Congress intended
that consequence.
UNITED STATES v. MACIAS-VALENCIA 15993
[4] In neither case, then, was the issue we face today “pre-
sented for review” and decided. Barapind, 400 F.3d at 750-
51. Accordingly, we are free to decide the issue without refer-
ring it to the court en banc. See Robbins v. Carey,
481 F.3d
1143, 1149 n.3 (9th Cir. 2007) (“Ordinarily, panels cannot
overrule a circuit precedent; that power is reserved to the cir-
cuit court sitting en banc.”).
[5] In summary, Congress has dictated that a conviction for
a conspiracy to distribute or an attempt to distribute a con-
trolled substance carries the same penalty as a conviction for
the distribution of the same amount of the same controlled
substance. Neither a conspiracy conviction nor an attempt
conviction requires the delivery, presence, or even existence
of actual contraband. It follows that the district court properly
imposed the mandatory minimum sentence here.
AFFIRMED.
