FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-50573 Plaintiff-Appellee, D.C. No. v. CR-02-00003-VAP- ESTEBAN RAYGOSA-ESPARZA, 2 Defendant-Appellant. OPINION
Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding
Argued and Submitted April 7, 2009—Pasadena, Calfornia
Filed May 15, 2009
Before: Harry Pregerson and David R. Thompson, Circuit Judges, and Jeremy D. Fogel,* District Judge.
Opinion by Judge Thompson
*The Honorable Jeremy D. Fogel, United States District Judge for the Northern District of California, sitting by designation.
5893 UNITED STATES v. RAYGOSA-ESPARZA 5895
COUNSEL
Neha Mehta, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant. 5896 UNITED STATES v. RAYGOSA-ESPARZA Sheri Pym, Assistant United States Attorney, Riverside, Cali- fornia, for the plaintiff-appellee.
OPINION
THOMPSON, Senior Circuit Judge:
Esteban Raygosa-Esparza (“Raygosa-Esparza”) challenges the new sentence imposed by the district court following his successful 28 U.S.C. § 2255 petition. We affirm.
Raygosa-Esparza was found guilty by a jury of two counts of conspiring to smuggle drugs into a federal prison, in viola- tion of 21 U.S.C. § 846, and 18 U.S.C. § 1791(a)(2).
The indictment identified heroin, methamphetamine, and marijuana as objects of the conspiracy. Prior to trial, the par- ties stipulated to the type and quantity of the drugs involved in the offenses: nine and a half grams of heroin, six grams of methamphetamine, and eight and three-tenths grams of mari- juana. The jury returned a general verdict on both counts; nei- ther party requested a special verdict reflecting the drugs involved.
Raygosa-Esparza was sentenced to 210 months on each count. The district court imposed the two terms concurrently, along with three years supervised release and a special assess- ment of $200.
Several months later, Raygosa-Esparza filed a pro se motion under 28 U.S.C. § 2255. The government alerted the district court to a possible Apprendi error, though Raygosa- Esparza had not raised the issue in his § 2255 petition. Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court found that Raygosa-Esparza’s original sentence had been calculated in violation of Apprendi, because the sentence UNITED STATES v. RAYGOSA-ESPARZA 5897 relied on the fact that his offense involved marijuana, heroin, and methamphetamine, a specific fact that was not found by the jury in its general verdict. The court granted Raygosa- Esparza’s § 2255 motion on this sole ground, and held that the jury’s verdict supported a finding of guilty only with respect to the marijuana, which carried the lowest statutory maxi- mums of the three drugs involved.
The government consented to resentencing in lieu of a new trial. The district court vacated the original sentence, and fol- lowing a resentencing hearing, sentenced Raygosa-Esparza to terms of sixty months imprisonment for each offense, to be served consecutively. Raygosa-Esparza argues the prison terms should have been imposed to run concurrently, his sen- tence was vindictively imposed, and his Fifth and Sixth Amendment rights were violated by the court relying on facts not found by the jury.
STANDARD OF REVIEW
Raygoza-Esparza’s resentencing occurred on December 10, 2007, after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Reviewing his sentence under an abuse of discretion standard, “only a procedurally errone- ous or substantively unreasonable sentence will be set aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008 en banc). We review challenges to the constitutionality of his sentence de novo. United States v. McCaleb, 552 F.3d 1053, 1061 (9th Cir. 2009).
DISCUSSION
On appeal, Raygosa-Esparza challenges the reasonableness of his sentence. He also argues his sentence is unconstitu- tional — because the court considered factors outside the jury verdict in determining the sentence, and the sentence was vin- dictive. At the heart of each of these claims lies his contention that the district court erred in imposing consecutive, rather 5898 UNITED STATES v. RAYGOSA-ESPARZA than concurrent, sentences. This argument necessarily fails, because the district court was required by statute to impose consecutive sentences.
[1] Raygosa-Esparza was convicted of conspiring to pos- sess and distribute a controlled substance, in violation of 21 U.S.C. § 846, and attempting to obtain contraband in prison, in violation of 18 U.S.C. § 1791(a)(2). When a defendant vio- lates § 1791(a)(2) by attempting to obtain or possess a con- trolled substance, as Raygosa-Esparza did, his sentence must be served consecutively to any other sentence involving a controlled substance:
[A]ny punishment imposed under subsection (b) for a violation of this section involving a controlled sub- stance shall be consecutive to any other sentence imposed by any court for an offense involving such a controlled substance.
18 U.S.C. § 1791(c) (emphasis added). Raygosa-Esparza’s sentence for the § 1791(a)(2) offense was imposed under § 1791(b)(3).
[2] Both of Raygosa-Esparza’s convictions involved con- trolled substances. As discussed above, Raygosa-Esparza’s indictment listed heroin, methamphetamine, and marijuana as the objects of the § 846 and § 1791(a)(2) offenses. Marijuana and heroin are “Schedule I” controlled substances; metham- phetamine is a “Schedule II” controlled substance. 21 U.S.C. § 812(c)(I)(b)(10), (I)(c)(10), (II)(c). Regardless of whether one drug or all three drugs are treated as the object of Raygosa-Esparza’s offenses for sentencing purposes, the sen- tences for his § 846 and § 1791 offenses must run consecu- tively.
[3] Thus, Raygosa-Esparza’s challenge to the reasonable- ness of his sentence is without merit. He argues that the dis- trict court abused its discretion by imposing consecutive UNITED STATES v. RAYGOSA-ESPARZA 5899 sentences; however, the district court did not have the discre- tion to impose concurrent sentences. He raises no other ground for challenging the reasonableness of the sentence, and he does not allege any procedural error. We conclude that the district court did not abuse its discretion in resentencing Raygosa-Esparza to consecutive terms.
[4] Next, Raygosa-Esparza contends that in resentencing him the district court punished him by imposing consecutive, rather than concurrent, terms because he successfully appealed his original sentence.
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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-50573 Plaintiff-Appellee, D.C. No. v. CR-02-00003-VAP- ESTEBAN RAYGOSA-ESPARZA, 2 Defendant-Appellant. OPINION
Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding
Argued and Submitted April 7, 2009—Pasadena, Calfornia
Filed May 15, 2009
Before: Harry Pregerson and David R. Thompson, Circuit Judges, and Jeremy D. Fogel,* District Judge.
Opinion by Judge Thompson
*The Honorable Jeremy D. Fogel, United States District Judge for the Northern District of California, sitting by designation.
5893 UNITED STATES v. RAYGOSA-ESPARZA 5895
COUNSEL
Neha Mehta, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant. 5896 UNITED STATES v. RAYGOSA-ESPARZA Sheri Pym, Assistant United States Attorney, Riverside, Cali- fornia, for the plaintiff-appellee.
OPINION
THOMPSON, Senior Circuit Judge:
Esteban Raygosa-Esparza (“Raygosa-Esparza”) challenges the new sentence imposed by the district court following his successful 28 U.S.C. § 2255 petition. We affirm.
Raygosa-Esparza was found guilty by a jury of two counts of conspiring to smuggle drugs into a federal prison, in viola- tion of 21 U.S.C. § 846, and 18 U.S.C. § 1791(a)(2).
The indictment identified heroin, methamphetamine, and marijuana as objects of the conspiracy. Prior to trial, the par- ties stipulated to the type and quantity of the drugs involved in the offenses: nine and a half grams of heroin, six grams of methamphetamine, and eight and three-tenths grams of mari- juana. The jury returned a general verdict on both counts; nei- ther party requested a special verdict reflecting the drugs involved.
Raygosa-Esparza was sentenced to 210 months on each count. The district court imposed the two terms concurrently, along with three years supervised release and a special assess- ment of $200.
Several months later, Raygosa-Esparza filed a pro se motion under 28 U.S.C. § 2255. The government alerted the district court to a possible Apprendi error, though Raygosa- Esparza had not raised the issue in his § 2255 petition. Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court found that Raygosa-Esparza’s original sentence had been calculated in violation of Apprendi, because the sentence UNITED STATES v. RAYGOSA-ESPARZA 5897 relied on the fact that his offense involved marijuana, heroin, and methamphetamine, a specific fact that was not found by the jury in its general verdict. The court granted Raygosa- Esparza’s § 2255 motion on this sole ground, and held that the jury’s verdict supported a finding of guilty only with respect to the marijuana, which carried the lowest statutory maxi- mums of the three drugs involved.
The government consented to resentencing in lieu of a new trial. The district court vacated the original sentence, and fol- lowing a resentencing hearing, sentenced Raygosa-Esparza to terms of sixty months imprisonment for each offense, to be served consecutively. Raygosa-Esparza argues the prison terms should have been imposed to run concurrently, his sen- tence was vindictively imposed, and his Fifth and Sixth Amendment rights were violated by the court relying on facts not found by the jury.
STANDARD OF REVIEW
Raygoza-Esparza’s resentencing occurred on December 10, 2007, after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005). Reviewing his sentence under an abuse of discretion standard, “only a procedurally errone- ous or substantively unreasonable sentence will be set aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008 en banc). We review challenges to the constitutionality of his sentence de novo. United States v. McCaleb, 552 F.3d 1053, 1061 (9th Cir. 2009).
DISCUSSION
On appeal, Raygosa-Esparza challenges the reasonableness of his sentence. He also argues his sentence is unconstitu- tional — because the court considered factors outside the jury verdict in determining the sentence, and the sentence was vin- dictive. At the heart of each of these claims lies his contention that the district court erred in imposing consecutive, rather 5898 UNITED STATES v. RAYGOSA-ESPARZA than concurrent, sentences. This argument necessarily fails, because the district court was required by statute to impose consecutive sentences.
[1] Raygosa-Esparza was convicted of conspiring to pos- sess and distribute a controlled substance, in violation of 21 U.S.C. § 846, and attempting to obtain contraband in prison, in violation of 18 U.S.C. § 1791(a)(2). When a defendant vio- lates § 1791(a)(2) by attempting to obtain or possess a con- trolled substance, as Raygosa-Esparza did, his sentence must be served consecutively to any other sentence involving a controlled substance:
[A]ny punishment imposed under subsection (b) for a violation of this section involving a controlled sub- stance shall be consecutive to any other sentence imposed by any court for an offense involving such a controlled substance.
18 U.S.C. § 1791(c) (emphasis added). Raygosa-Esparza’s sentence for the § 1791(a)(2) offense was imposed under § 1791(b)(3).
[2] Both of Raygosa-Esparza’s convictions involved con- trolled substances. As discussed above, Raygosa-Esparza’s indictment listed heroin, methamphetamine, and marijuana as the objects of the § 846 and § 1791(a)(2) offenses. Marijuana and heroin are “Schedule I” controlled substances; metham- phetamine is a “Schedule II” controlled substance. 21 U.S.C. § 812(c)(I)(b)(10), (I)(c)(10), (II)(c). Regardless of whether one drug or all three drugs are treated as the object of Raygosa-Esparza’s offenses for sentencing purposes, the sen- tences for his § 846 and § 1791 offenses must run consecu- tively.
[3] Thus, Raygosa-Esparza’s challenge to the reasonable- ness of his sentence is without merit. He argues that the dis- trict court abused its discretion by imposing consecutive UNITED STATES v. RAYGOSA-ESPARZA 5899 sentences; however, the district court did not have the discre- tion to impose concurrent sentences. He raises no other ground for challenging the reasonableness of the sentence, and he does not allege any procedural error. We conclude that the district court did not abuse its discretion in resentencing Raygosa-Esparza to consecutive terms.
[4] Next, Raygosa-Esparza contends that in resentencing him the district court punished him by imposing consecutive, rather than concurrent, terms because he successfully appealed his original sentence. Raygosa-Esparza has a Fifth Amendment due process right not to be subjected to vindic- tive resentencing following his successful § 2255 petition. United States v. Peyton, 353 F.3d 1080, 1085 (9th Cir. 2003). However, this argument also lacks merit. The consecutive sentences were not imposed vindictively, but rather were required by statute.
[5] This leaves one issue: whether the district court violated Raygosa-Esparza’s Fifth and Sixth Amendment rights by relying on facts not found by the jury. Though Raygosa- Esparza was indicted for offenses involving marijuana, her- oin, and methamphetamine, and stipulated prior to trial, that all three drugs were objects of the conspiracy, the general ver- dict returned by the jury did not specify which drugs Raygosa-Esparza was convicted of conspiring to smuggle into the prison. This ambiguity led the district court to vacate Raygosa-Esparza’s original sentence, and issue a § 2255 order stating that the jury’s verdict should be read to support a find- ing of guilty only with respect to the marijuana. As a result, each offense carried a statutory maximum of five years imprisonment. 21 U.S.C. § 841(b)(1)(D); 18 U.S.C. § 1791(b)(3).
[6] The revised sentence imposed by the district court for each offense does not exceed this statutory maximum. Accordingly, no constitutional violation occurred, even if the district court did rely on facts not found by the jury. “Standing 5900 UNITED STATES v. RAYGOSA-ESPARZA alone, judicial consideration of facts and circumstances beyond those found by a jury or admitted by the defendant does not violate the Sixth Amendment right to jury trial.” United States v. Ameline, 409 F.3d 1073, 1077-78 (9th Cir. 2005 en banc). Findings outside the jury verdict violate the Sixth Amendment only where they are used to “increase[ ] the penalty for a crime beyond the prescribed statutory maxi- mum.” Apprendi, 530 U.S. at 490. The district court was per- mitted to consider the fact that the offenses involved heroin, methamphetamine, and marijuana, so long as the sentence imposed did not exceed the statutory maximum for a marijuana-only offense.
AFFIRMED.