                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 19 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-30109

              Plaintiff-Appellee,                D.C. No. 3:14-cr-00267-BR-3

 v.
                                                 MEMORANDUM*
RAUL ARCILA,

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   16-30110

              Plaintiff-Appellee,                D.C. No. 3:14-cr-00267-BR-1

 v.

FABIAN SANDOVAL-RAMOS,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                       Argued and Submitted March 6, 2018
                                Portland, Oregon

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FISHER, N.R. SMITH, and HURWITZ, Circuit Judges.

      Raul Arcila and Fabian Sandoval-Ramos (“Defendants”) were convicted of

conspiracy to distribute heroin resulting in death. 21 U.S.C. § 841(a)(1), (b)(1)(C).

They appeal their convictions and sentences. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

1.    The district court did not commit plain error by instructing the jury to

answer a special verdict question regarding whether death was a foreseeable result

of the conspiracy. When a defendant does not object to jury instructions at trial, we

review those instructions for plain error. United States v. Sanders, 421 F.3d 1044,

1050 (9th Cir. 2005). “A trial court commits plain error when (1) there is error, (2)

that is plain, and (3) the error affects substantial rights.” United States v. Fuchs,

218 F.3d 957, 962 (9th Cir. 2000).

      In United States v. Houston, we held that the death resulting from the

distribution of a controlled substance need not have been reasonably foreseeable in

order for the penalty enhancement in § 841(b)(1)(C) to apply. 406 F.3d 1121, 1123

(9th Cir. 2005). We noted that, although other cases had required the government

to prove the defendant’s conduct proximately cause the resulting injury, those

cases “involved crimes such as involuntary manslaughter and conspiracy that



                                            2
impose criminal culpability only when the consequences of the criminal act are

reasonably foreseeable.” Id. (emphasis added). Here, the government requested the

special verdict question, because it was concerned that the holding in Houston did

not extend to conspiracies. Because Houston implied conspiracies may require

proof of proximate cause, the district court did not commit plain error by including

the special verdict question. Moreover, Defendants cannot show prejudice from the

question; if, as Defendants contend, only but-for causation was required, the

special question verdict suggested a higher burden of proof.

2.    Because the district court did not err in including the special verdict

question, it also did not commit plain error by allowing the government to

introduce evidence regarding the harmful and deadly effects of heroin usage. Such

evidence was relevant to prove that death was a reasonably foreseeable result of the

conspiracy to distribute heroin.

3.    Defendants’ argument that the district court committed plain error by

allowing the government to introduce hearsay statements lacks merit. The

statements were not hearsay, because they were not introduced for the truth of the

matter asserted in the statements. Fed. R. Evid. 801(c). Rather, the statements were

introduced to show the effect they had on the listeners. See United States v. Torres,

794 F.3d 1053, 1057 (9th Cir. 2015). When evidence can be used for two different


                                          3
purposes, one permissible and one impermissible, a court may allow the

introduction of the evidence for the permissible purpose. United States v. Flores,

802 F.3d 1028, 1047 (9th Cir. 2015).

4.    The district court did not err in applying the penalty enhancement in

§ 841(b)(1)(C). Section 846 provides that “[a]ny person who attempts or conspires

to commit any offense defined in this subchapter shall be subject to the same

penalties as those prescribed for the offense, the commission of which was the

object of the attempt or conspiracy.” 21 U.S.C. § 846 (emphasis added).

Defendants conspired to violate § 841(a), i.e., distribution of a controlled

substance. Therefore, they are subject to the same penalty as if they had actually

violated § 841(a). The penalty enhancement in § 841(b)(1)(C) applies when the use

of the controlled substance distributed in violation of § 841(a) is the but-for cause

of a death. Burrage v. United States, 134 S. Ct. 881, 892 (2014). Thus, the district

court did not err in applying the penalty enhancement provision, because the heroin

distributed as a result of Defendants’ conspiracy to violate § 841(a) caused a

death.1




      1
        Whether the government is required to prove proximate causation in
addition to actual causation in the case of a conspiracy has not yet been answered
directly. Here, however, the jury found both actual and proximate causation.
                                           4
      The government did not need to prove that the object of the conspiracy was

to violate the penalty enhancement provision in § 841(b)(1)(C), i.e., to cause death,

because a sentencing enhancement is not part of the underlying offense. See United

States v. Vera, 770 F.3d 1232, 1249 (9th Cir. 2014). (holding that the factual

predicate to a sentencing enhancement was merely “the functional equivalent of an

element that had to be submitted to a jury and proved beyond a reasonable doubt

for the purposes of sentencing alone” (quotation marks and citation omitted)).

Consequently, the district court did not err in applying the penalty enhancement in

§ 841(b)(1)(C).

5.    The district court sentenced Defendants to the statutory minimum sentence.

Thus, any error in calculating their respective sentencing guideline ranges was

harmless.

      AFFIRMED.




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