United States v. Pimentel-Lopez, — F.3d —, 2016 WL 9076502 (9th Cir. June 1, 2017): Rehearing denied in case barring sentencing judge from overriding jury’s affirmative finding of drug quantity
A blog entry posted in this space on July 30, 2016 covered the original panel opinion in United States v. Pimentel-Lopez. In a nutshell, the panel held that when a jury makes an affirmative finding that the defendant possessed less than a specified amount of narcotics, the sentencing court cannot later find that he actually possessed more than that amount. The government filed for en banc rehearing. The court voted against rehearing, but the panel amended its opinion and six judges dissented from the denial of rehearing. In response (presumably) to the views of the dissenting judges, the panel added language to the opinion illustrating how the verdict form could have been structured to prevent the problem, and noted that the government “can easily avoid this pitfall in future cases.” The dissenters argued that the panel misread the verdict form, and that the jury did not find beyond a reasonable doubt that the amount of drugs involved was not more than the specified amount. The dissenters asserted that the panel opinion creates a circuit split “with this circuit alone on an island.” They also warned that the panel opinion had “serious practical consequences” because the jury form in question is “substantially similar” to the court’s model form, meaning that similar forms may have been used in many cases.
(Repeat congratulations to Timothy M. Bechtold, Bechtold Law Firm, PLLC, Missoula, Montana.)