United States v. Nancy Cole

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 9, 2021
• Docket: 19-50104
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50104

Plaintiff-Appellee, D.C. No. 3:17-cr-04414-CAB-2 v.

NANCY COLE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted June 4, 2020** Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and KANE,*** District Judge.

Nancy Cole appeals her conviction and sentence for importing and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel withdrew submission of this appeal pending resolution of United States v. Collazo, --- F.3d ----, No. 15-50509, 2021 WL 129792 (9th Cir. Jan. 14, 2021) (en banc). The panel hereby resubmits this case as of the date this memorandum is filed. *** The Honorable Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation. conspiring to import more than 500 grams of a substance containing

methamphetamine, in violation of 21 U.S.C. §§ 952, 960, and 963. Having

jurisdiction over this appeal under 28 U.S.C. § 1291, we affirm.

1. The district court properly declined to award Cole “safety valve” relief

under 18 U.S.C. § 3553(f), which can entitle a defendant to a sentence below the

mandatory minimum for “truthfully provid[ing] to the government all information

and evidence [she] has concerning the offense.” Although Cole admitted to

smuggling drugs into the United States, she claimed that she did so only because

her then-boyfriend threatened to kill her children if she refused. Yet messages

Cole exchanged with this man show that he was concerned about Cole’s and their

child’s safety and that Cole was the one threatening to harm him. In light of this

evidence, the court did not clearly err in finding that Cole failed to prove that she

provided truthful information to the government.1 See United States v. Real-

Hernandez, 90 F.3d 356, 361 (9th Cir. 1996) (explaining that the defendant must

“truthfully supply details of his own culpability”).

Relying on United States v. Haymond, 139 S. Ct. 2369 (2019) (plurality

opinion), Cole protests that § 3553(f) unconstitutionally relieves the government of

1 The district court’s decision on this point satisfies Federal Rule of Criminal Procedure 32. See United States v. Ingham, 486 F.3d 1068, 1074 (9th Cir. 2007) (“[Rule 32 findings] need not be detailed and lengthy. Rather, they need only state the court’s resolution of the disputed issues.” (quotations and citation omitted)).

2 having to prove to a jury facts triggering an increased minimum sentence. This

argument conflates relief from an earned sentence with the elements of the crime

underpinning that sentence. See Lizarraga-Carrizales, 757 F.3d 995, 999 (9th Cir.

2014); United States v. Fincher, 929 F.3d 501, 504-05 (7th Cir. 2019). Haymond

is readily distinguishable, as it dealt with supervised-release violations resulting in

new mandatory minimums without the violations having been proven to a jury.

139 S. Ct. at 2378-80. Here, however, the jury’s findings authorized the sentence

imposed, and the onus of establishing an entitlement to less time appropriately

rested upon Cole.

2. We also reject Cole’s argument that the jury instructions and

government’s summation constructively amended her indictment. Pointing out

that the indictment charged her with knowingly importing and conspiring to import

methamphetamine, specifically, rather than a controlled substance, generally, Cole

contends that the government locked itself into having to prove her knowledge of

the drug type and quantity. But constructive amendments occur when “the

defendant is charged with one crime but, in effect, is tried for another crime.”

United States v. Pang, 362 F.3d 1187, 1194 (9th Cir. 2004). That did not happen

here, and at any rate “the indictment was not constructively amended . . . because .

. . [Cole’s] knowledge of drug type and quantity . . . was not ‘essential’ to [her]

conviction.” United States v. Sua, 307 F.3d 1150, 1155 (9th Cir. 2002).

3 Furthermore, as Cole never broached this issue with the district court, we

review the matter for plain error, which requires Cole to show that any error

affected her substantial rights. United States v. Mickey, 897 F.3d 1173, 1183 (9th

Cir. 2018). This she cannot do. Her theory at trial was that she was wholly

innocent—that, unbeknownst to her, smugglers placed “drugs” in her car. She did

not argue that she believed she was smuggling some substance other than

methamphetamine. Because there is no “credible argument” that her trial strategy

and outcome would have been the same had the indictment advanced a more

general allegation, she was not prejudiced by its wording. See id. at 1184

(affirming a conviction where the defendant would not have approached his

defense any differently had the indictment hewed more closely to the statutory

language).

3. Nor did 21 U.S.C. § 960(b) otherwise require the government to prove

that Cole knew the type and quantity of the controlled substance she smuggled into

the United States. United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015),

forecloses this argument, and we recently reiterated our position in United States v.

Collazo, --- F.3d ----, No. 15-50509, 2021 WL 129792 (9th Cir. Jan. 14, 2021) (en

banc). There we held that a similar statute required the government to “prove

beyond a reasonable doubt the specific type and the quantity of substance involved

in the offense, but not the defendant’s knowledge of (or intent) with respect to that

4 type and quantity.” Id. at *14. The government met that burden here.

Contrary to Cole’s contention, Rehaif v. United States, 139 S. Ct. 2191

(2019), does not compel a different result. First, that case concerned a statute

structured much differently than § 960(b). Id. at 2195-96. Second, the Court

required a mens rea for the one element separating the criminal conduct from

otherwise innocent behavior. Id. at 2196-97. In comparison, § 960(b) requires

defendants to knowingly import a controlled substance and thus does not punish

those lacking a culpable mental state. Rehaif is therefore not especially relevant to

this case.

4. Finally, we disagree with Cole that 21 U.S.C. § 960(b) is unconstitutional

for imposing sentences disproportionate to a defendant’s awareness of the

underlying circumstances. So long as the defendant “recognizes [that she] is doing

something culpable, . . . [she] need not be aware of the particular circumstances

that result in greater punishment.” United States v. Flores-Garcia, 198 F.3d 1119,

1121-22 (9th Cir. 2000); see also Collazo, 2021 WL 129792, at *13. Accordingly,

Cole was properly convicted and sentenced for importing and conspiring to import

500 grams or more of methamphetamine, even if the government did not prove her

knowledge of those specific facts.

AFFIRMED.