                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,          No. 13-50088
          Plaintiff-Appellee,
                                       D.C. No.
             v.                 2:10-cr-00567-AHM-4

MICHAEL ANTHONY TORRES,
       Defendant-Appellant.



UNITED STATES OF AMERICA,          No. 13-50095
          Plaintiff-Appellee,
                                       D.C. No.
             v.                 2:10-cr-00567-AHM-2

CESAR MUNOZ GONZALEZ,
AKA Blanco, AKA Cesar
Gonzales, AKA Ricardo
Martines, AKA Ricardo O.
Martinez, AKA Ricardo
Martinez-Osorio, AKA Osorio
Ricardo,
         Defendant-Appellant.
2             UNITED STATES V. TORRES

UNITED STATES OF AMERICA,              No. 13-50102
          Plaintiff-Appellee,
                                          D.C. No.
             v.                    2:10-cr-00567-AHM-1

RAFAEL MUNOZ GONZALEZ,
AKA “C”, AKA Cisco, AKA
Homeboy, AKA Big Homie,
       Defendant-Appellant.



UNITED STATES OF AMERICA,              No. 13-50107
          Plaintiff-Appellee,
                                          D.C. No.
             v.                    2:10-cr-00567-AHM-3

ABRAHAM ALDANA, AKA
Listo,                                      OPINION
       Defendant-Appellant.


     Appeal from the United States District Court
         for the Central District of California
     Alvin Howard Matz, District Judge, Presiding

        Argued and Submitted March 8, 2016
       Submission Vacated September 27, 2016
          Resubmitted September 6, 2017
                Pasadena, California

                  Filed September 6, 2017
                    UNITED STATES V. TORRES                               3

   Before: Richard R. Clifton and Sandra S. Ikuta, Circuit
     Judges and Frederic Block,* Senior District Judge.

                 Opinion by Judge Ikuta;
  Concurrence by Judge Clifton (setting forth the majority
 opinion as to Appellants’ challenge to Jury Instruction 50)


                            SUMMARY**


                            Criminal Law

    The panel affirmed four defendants’ convictions and
sentences for racketeering, drug trafficking conspiracy, and
related offenses involving the Puente-13 street gang.

    The panel held that the district court’s jury instruction for
determining drug quantities under 21 U.S.C. § 841(b), which
required the jury to determine drug quantities that were
reasonably foreseeable to each defendant in connection with
his criminal activity, was not reversible error, even though the
jury was not required to find that the drug quantities related
to violations that were part of a jointly undertaken criminal
activity. In a separate opinion that states the majority opinion
as to this issue, Judge Clifton wrote that the reasoning of
United States v. Banuelos, 322 F.3d 700 (9th Cir. 2003), in
favor of employing a disjunctive formulation for assigning an


    *
      The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4                UNITED STATES V. TORRES

individual conspirator’s responsibility for drug quantity, has
since been undermined. Judge Clifton wrote that en banc
review will ultimately be necessary to sort out the
inconsistency in the case law, but that the questions need not
be resolved in this case because plain error review applies
here, and any error in the jury instructions did not affect the
defendants’ substantial rights.

    The panel held that the district court did not err in
denying defendant Abraham Aldana’s request for a multiple
conspiracies instruction, where there was no evidence upon
which the jury could rationally sustain the defense that he was
a member only of separate conspiracies and not of the Puente-
13 conspiracy.

    The panel rejected the defendants’ argument that because
their state convictions overlap temporally with their
convictions in this case, the state convictions cannot be
considered “prior” convictions that trigger sentencing
enhancements under § 841(b). The panel held that because
the jury verdict necessarily determined that the defendants’
conspiracy continued past the dates when their state
convictions became final, the district court did not err in
relying on the defendants’ prior drug convictions to impose
the mandatory minimum penalties under § 841(b).

    The panel rejected the defendants’ argument that
21 U.S.C. §§ 841(b) and 851 violate the Sixth Amendment as
interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Alleyne v. United States, 133 S. Ct. 2151 (2013). The
panel explained that by permitting a court to find “the fact of
a prior conviction,” the Supreme Court in Apprendi
empowered a court to determine that the conviction was prior
to the case before the court.
                  UNITED STATES V. TORRES                       5

    In the portion of her opinion that constitutes a special
concurrence in Judge Clifton’s opinion, Judge Ikuta wrote
that the panel remains bound by Banuelos, and that the
district court therefore did not err in only requiring the jury to
determine what quantities of drugs were reasonably
foreseeable to each defendant in connection with his criminal
activity.


                          COUNSEL

H. Dean Steward (argued), San Clemente, California, for
Defendant-Appellant Cesar Munoz Gonzalez.

Benjamin L. Coleman (argued), Coleman Balogh & Scott
LLP, San Diego, California, for Defendant-Appellant Rafael
Munoz Gonzalez.

Michael J. Treman (argued), Santa Barbara, California, for
Defendant-Appellant Abraham Aldana.

Karen L. Landau, Oakland, California, for Defendant-
Appellant Michael Anthony Torres.

Mack E. Jenkins (argued) and Jennifer L. Williams, Assistant
United States Attorneys; Robert E. Dugdale, Chief, Criminal
Division; United States Attorney’s Office, Los Angeles,
California; for Plaintiff-Appellee.
6                   UNITED STATES V. TORRES

                             OPINION

IKUTA, Circuit Judge1:

    Rafael Munoz Gonzalez, Cesar Munoz Gonzalez,
Abraham Aldana, and Michael Torres appeal their
convictions and sentences for racketeering, drug trafficking
conspiracy, and related offenses. We hold that the district
court’s jury instruction for determining drug quantities under
21 U.S.C. § 841(b) was not reversible error, even though the
jury was not required to find that the drug quantities related
to violations that were part of a jointly undertaken criminal
activity. Nor did the district court err in denying a
defendant’s request for an instruction on multiple
conspiracies where the evidence did not show that the
defendant was involved only in a separate, unrelated
conspiracy. We also hold that the district court did not err in
concluding that the defendants had state convictions that were
prior to the conviction in this case for purposes of the
§ 841(b) mandatory minimum. We therefore affirm the
defendants’ convictions and sentences.2

                                    I

   Founded in 1955 in the city of La Puente in Southern
California, the Puente-13 street gang is a sophisticated,


    1
     Judge Ikuta’s opinion is the opinion of the majority of the court
except as to section II.A. That section constitutes Judge Ikuta’s special
concurrence.
    2
      We reject the defendants’ remaining arguments in a memorandum
disposition filed concurrently with this opinion. See United States v.
Torres, — F. App’x — (9th Cir. 2017).
                   UNITED STATES V. TORRES                          7

vertically integrated operation involved in the manufacture,
distribution, and sale of narcotics. By 2010, the gang had
about 600 documented members who were organized into a
number of separate divisions and maintained a large network
of stash houses. Though the drug enterprise was carried out
on a large scale, Puente-13’s business model was simple: the
gang carved out a territorial monopoly on drug distribution,
then collected the revenues provided by that monopoly. Drug
dealers within Puente-13’s territory were expected to obtain
their supply from the gang, and each was required to pay the
gang a portion of their revenues. Sellers who obtained
narcotics from other sources, were associated with other
gangs, or refused to pay “taxes” were attacked or excluded
from Puente-13’s territory. Puente-13’s business therefore
relied on its ability to maintain monopoly control over its
territory, meaning that its efforts to exclude or tax rival gangs
were as important to its success as actual drug sales.
Accordingly, Puente-13 used a number of means to enforce
its territorial monopoly, including robberies, prison violence,
assaults, kidnappings, murder, attempted murder, and drive-
by shootings. Puente-13 also worked to protect its operations
from law enforcement, engaging in routine counter-
surveillance against law enforcement officers.

    Puente-13 is subordinate to the Mexican Mafia gang, a
prison-based gang that controls the sureño gangs.3 As a
subsidiary, Puente-13 remits a portion of revenues from
illegal activities, especially drug proceeds, to the Mexican
Mafia. Puente-13 members also act as the Mexican Mafia’s
agents, serving as street-level enforcers and collecting taxes
from outsiders who sell drugs within Puente-13 territory.

    3
      According to testimony at trial, a “sureño” is a person who is a
soldier for the Mexican Mafia.
8                   UNITED STATES V. TORRES

    Beginning in the early 2000s, the Los Angeles County
Sheriff’s Department conducted a multi-year investigation of
Puente-13. That investigation identified defendants Rafael
Munoz Gonzalez, Cesar Munoz Gonzalez, Abraham Aldana,
and Michael Torres as key figures in the gang. Following the
conclusion of the investigation, the government presented its
evidence to three separate grand juries, which resulted in a
final eight-count criminal indictment.4

    Before trial, the government filed a sentencing
information under 21 U.S.C. § 8515 alleging that each of the
four defendants had prior felony drug convictions subjecting
them to mandatory minimum sentences. When the


    4
       Counts One, Two, and Seven charged all four defendants. Count
One charged racketeering conspiracy under 18 U.S.C. § 1962(d); Count
Two charged substantive racketeering under 18 U.S.C. § 1962(c) based on
membership in Puente-13; and Count Seven charged conspiracy to
distribute methamphetamine in violation of 21 U.S.C. § 846. The
government alleged that the defendants committed 86 overt acts in support
of their drug conspiracy. Counts three and four were omitted. Count Five
charged Rafael Munoz Gonzalez and Aldana with a Violent Crime in Aid
of Racketeering (VICAR), conspiracy to commit assault under 18 U.S.C.
§ 1959(a)(6). Count Six charged Rafael Munoz Gonzalez with a second
VICAR crime, conspiracy to commit murder under 18 U.S.C.
§ 1959(a)(5). Counts Eight and Nine charged Rafael Munoz Gonzalez,
Cesar Munoz Gonzalez, and Torres with possession with intent to
distribute methamphetamine under 21 U.S.C. § 841, and possession of a
firearm in furtherance of a drug trafficking offense under 18 U.S.C.
§ 924(c), respectively. Count Ten charged Torres with possession of a
firearm by a convicted felon under 18 U.S.C. § 922(g).
    5
       Section 851 provides that in order for a defendant to receive
increased punishment based on the defendant’s prior convictions, the
government must first identify those prior convictions by filing an
information with the court and serving a copy on the defendant before
trial. 21 U.S.C. § 851(a)(1).
                   UNITED STATES V. TORRES                            9

government files an § 851 information, defendants may be
subject to an increased statutory minimum sentence under
21 U.S.C. § 841, which sets terms of imprisonment based on
the drug quantities and prior convictions of each defendant.
21 U.S.C. § 841(b). The first § 851 information alleged that
Cesar Munoz Gonzalez had two prior drug convictions: a
1995 conviction for Possession of Cocaine Base for Sale
under section 11351.5 of the California Health and Safety
Code, and a 2000 conviction for Possession for Sale of
Methamphetamine under section 11378 of the California
Health and Safety Code. It also alleged that Aldana had one
prior drug conviction, a 2002 conviction for Possession for
Sale of Methamphetamine under section 11378 of the
California Health and Safety Code. Finally, the first § 851
information alleged that Torres had a 1994 conviction for
Possession of Cocaine under section 11350(a) of the
California Health and Safety Code. The second § 851
information addressed Rafael Munoz Gonzalez’s prior
offenses, alleging that he had a 1989 conviction for
Possession with Intent to Distribute Crack Cocaine under
21 U.S.C. § 841(a)(1),6 and a 2000 conviction for Possession
of a Controlled Substance for Sale under section 11378 of the
California Health and Safety Code.

    Over the course of a 23-day trial, the government
presented evidence showing the following. Rafael Munoz
Gonzalez was the leader of Puente-13, as well as an important
member of the Mexican Mafia. Rafael Munoz Gonzalez set


    6
      At sentencing, the government instead relied on a 1990 conviction
for conspiracy to distribute cocaine under 21 U.S.C. § 846. This error
does not affect our analysis, however, because it was corrected prior to
sentencing and Rafael Munoz Gonzalez was sentenced on the basis of a
§ 846 predicate offense.
10               UNITED STATES V. TORRES

the agenda for Puente-13 even when he was in prison, issuing
orders to other gang members and receiving revenues from
drug sales. As leader, he pursued an aggressive expansion
strategy in order to enlarge the gang’s business by expanding
its territorial control. To further this strategy, Rafael Munoz
Gonzalez ordered members to extort money from all drug
dealers within the gang’s territory. He also ordered gang
members to purchase their methamphetamine exclusively
from his brother, Cesar Munoz Gonzalez.

    Cesar Munoz Gonzalez was the nominal leader of Puente-
13 while Rafael was in prison. Like his brother, Cesar
Munoz Gonzalez worked to subdue rivals, urging Puente-13
members to tax all drug dealers within their territory and to
enforce taxation through extortion, assault, and murder.
Cesar Munoz Gonzalez’s primary responsibility was
managing the production and sale of methamphetamine; he
was known within the gang as a high-quantity
methamphetamine dealer. In connection with his production
responsibilities, Cesar Munoz Gonzalez shared a proprietary
method for producing a superior and more marketable form
of methamphetamine with a few trusted cohorts. Cesar
Munoz Gonzalez used a stash house on Fourth Avenue in La
Puente for production and storage of the product, as well as
a center for methamphetamine distribution.

   Abraham Aldana was a longtime Puente-13 member and
one of Rafael Munoz Gonzalez’s top lieutenants. Aldana’s
involvement in Puente-13 was twofold. With respect to the
drug production and distribution aspects of the business,
Aldana personally purchased methamphetamine from a
Puente-13 dealer and sold methamphetamine within Puente-
13’s territory. Between 1998 and 2002, Aldana purchased
methamphetamine five times from Andy Villa, then a Puente
                 UNITED STATES V. TORRES                     11

13 member, and resold it from his own house. In 2008,
Steven Nunez, another Puente-13 member, sold Aldana
methamphetamine five times after Aldana was released from
prison. Aldana, in turn, sold methamphetamine “four or five
times a week.” In December 2008, a law enforcement search
of Aldana’s residence uncovered 3.17 grams of
methamphetamine.

    With respect to other aspects of the business, Aldana
served as Rafael Munoz Gonzalez’s representative and
enforcer. Among other acts, Aldana negotiated with the
Mexican Mafia for additional resources to assist Rafael
Munoz Gonzalez’s efforts to organize attacks against rival
gang members both inside and outside of prison. Aldana also
personally extorted drug payments from rival gang members,
collected taxes from Puente-13 members, and threatened
violence if the targets failed to comply. On occasion, Aldana
took cars from drug dealers in lieu of tax payments.

     Michael Torres was an associate of Puente-13 and was
involved primarily in transporting and delivering drugs and
drug proceeds. Torres resided at Cesar Munoz Gonzalez’s
Fourth Avenue stash house and helped with sales and tax
collection. While living at the stash house, Torres sold at
least 30 pounds of methamphetamine and helped manufacture
methamphetamine on numerous occasions. Torres also stored
a firearm in his room at the stash house in order to protect the
gang’s operations.

    At the conclusion of trial, the jury convicted the
defendants on all counts. The district court then held
individual sentencing hearings to consider the government’s
§ 851 informations. After determining that Rafael Munoz
Gonzalez and Cesar Munoz Gonzalez each had two prior drug
12               UNITED STATES V. TORRES

offenses as alleged in the § 851 informations, the district
court sentenced both to the mandatory minimum sentence of
life imprisonment. The court determined that Aldana had one
prior drug conviction and was subject to the mandatory
minimum sentence of 20 years. It sentenced Aldana to
324 months. Finally, the court determined that Torres was
subject to the same 20-year mandatory minimum sentence
because of one prior drug conviction and to an additional
five-year mandatory minimum sentence because of his
conviction under 18 U.S.C. § 924. The court sentenced
Torres to 300 months.

                              II

    On appeal, the defendants challenge the jury instructions
for Counts Seven and Eight and the district court’s
determination that the defendants were subject to mandatory
minimum sentences under 21 U.S.C. § 841(b). We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                              A

    All four defendants challenge Jury Instruction 50, which
addressed the drug quantity determinations required by
21 U.S.C. § 841(b). Under § 841, any defendant convicted of
a drug offense in violation of § 841(a) “shall be sentenced” to
the penalties set forth in § 841(b). 21 U.S.C. § 841(b).
Section 841(b)(1)(A) provides that “[i]n the case of a
violation of [§ 841(a)] involving . . . 50 grams or more of
methamphetamine, its salts, isomers, and salts of its isomers
or 500 grams or more of a mixture or substance containing a
detectable amount of methamphetamine, its salts, isomers, or
salts of its isomers,” the defendant shall be subject to one of
several specified mandatory minimum sentences. 21 U.S.C.
                     UNITED STATES V. TORRES                        13

§ 841(b)(1)(A).7 The alleged violations at issue were those
set forth in Count Seven (which alleged that all four
defendants engaged in a drug trafficking conspiracy in
violation of 21 U.S.C. § 846), and those set forth in Count
Eight (which charged Rafael Munoz Gonzalez, Cesar Munoz
Gonzalez, and Torres with substantive drug trafficking under
21 U.S.C. § 841). Jury Instruction 50 stated:

          If you find any defendant guilty of Count
          Seven or Eight of the indictment (or both),
          you are then to determine, as to each

   7
       21 U.S.C. § 841(b) states, in pertinent part:

          (b) Penalties

          Except as otherwise provided in [sections not relevant
          here], any person who violates subsection (a) of this
          section [enumerating unlawful drug offenses] shall be
          sentenced as follows: (1)(A) In the case of a violation
          of subsection (a) of this section involving— . . .
          (viii) 50 grams or more of methamphetamine, its salts,
          isomers, and salts of its isomers or 500 grams or more
          of a mixture or substance containing a detectable
          amount of methamphetamine, its salts, isomers, or salts
          of its isomers;

          such person shall be sentenced to a term of
          imprisonment . . . . If any person commits such a
          violation after a prior conviction for a felony drug
          offense has become final, such person shall be
          sentenced to a term of imprisonment which may not be
          less than 20 years and not more than life imprisonment
          . . . . If any person commits a violation of this
          subparagraph . . . after two or more prior convictions
          for a felony drug offense have become final, such
          person shall be sentenced to a mandatory term of life
          imprisonment without release . . . .
14               UNITED STATES V. TORRES

       defendant, which of the certain weights of
       methamphetamine on the special verdict
       forms the government proved beyond a
       reasonable doubt was reasonably foreseeable
       to each defendant in connection with his
       criminal activity.

Pursuant to Jury Instruction 50, the jury made a special
finding that “it was reasonably foreseeable” to each defendant
“that the overall conspiracy involved the distribution of”
(i) 50 grams or more of “pure or actual” methamphetamine
and (ii) 500 grams or more of a mixture or substance
containing a detectable amount of methamphetamine.

     On appeal, the defendants argue that Jury Instruction 50
was erroneous because it did not instruct the jury that it had
to find that the drug quantities were associated with conduct
that was in furtherance of jointly undertaken criminal activity
in addition to being reasonably foreseeable to each defendant.

    In making this argument, the defendants rely on United
States v. Becerra, 992 F.2d 960 (9th Cir. 1993). In Becerra,
defendants who had been part of a conspiracy to sell drugs
argued that the district court had erred in calculating the
quantity of drugs attributable to their conduct and had
therefore imposed an erroneous sentence. Id. at 966. Among
other things, they argued that “the evidence was insufficient
to support a finding that each ‘knew or could reasonably
foresee’” that their co-defendant would negotiate a 25-
kilogram deal “or that each had agreed to a conspiracy of that
scope.” Id. In addressing this argument, Becerra explained
that “[u]nder the Guidelines, each conspirator may be
sentenced only for the quantity of drugs that he reasonably
foresaw would be distributed or that fell within the scope of
                    UNITED STATES V. TORRES                             15

his own agreement with his co-conspirators.” Id. (emphasis
added).8 Applying this standard, we upheld the sentence of
one of the defendants because the evidence at trial was
sufficient for the court to find that the defendant had
“participated in negotiations for the 25 kilograms or that he
knew or reasonably should have foreseen that such an amount
would be negotiated.” Id. at 966–67. We reversed the
sentence of the other defendant because such evidence was
lacking. Id. at 967. In a footnote, Becerra then indicated that
the same analysis would apply to the determination of drug
quantities under § 841. Id. at 967 n.2. Although noting the
language of § 841(b) referenced violations “involving”
specified quantities of drugs, Becerra rejected the
government’s argument that § 841(b) allowed a court “to
sentence a defendant based on the amount of cocaine
‘involved’ in an offense, rather than assessing an individual
defendant’s level of responsibility” because there was “no


    8
      It appears that Becerra relied on the 1991 version of the Guidelines,
which was in effect before the Guidelines were amended in November
1992. 992 F.2d at 963. The application notes to § 1B1.3 in the 1991
version provided that “[i]n the case of criminal activity undertaken in
concert with others,” a defendant can be held accountable for “conduct of
others” that is “in furtherance of the execution of the jointly-undertaken
criminal activity” and “was reasonably foreseeable by the defendant.”
U.S.S.G. § 1B1.3, cmt. n.1 (1991). The application notes further stated
that “the scope of the jointly-undertaken criminal activity, and hence
relevant conduct, is not necessarily the same for every participant,” and
therefore “[w]here it is established that the conduct was neither within the
scope of the defendant’s agreement, nor was reasonably foreseeable in
connection with the criminal activity the defendant agreed to jointly
undertake, such conduct is not included in establishing the defendant’s
offense level under this guideline.” Id. It is unclear why the Sentencing
Commission imposed an “in furtherance” requirement in the affirmative
formulation of the standard but then used a “within the scope” requirement
in the negative formulation.
16               UNITED STATES V. TORRES

reason why sentencing under the statutory mandatory
minimums should differ” from sentencing under the
Guidelines. Id. Without further explanation, we held that the
government “must show that a particular defendant had some
connection with the larger amount on which the sentencing is
based or that he could reasonably foresee that such an amount
would be involved in the transactions of which he was
guilty.” Id. (emphasis added).

    In United States v. Banuelos, we directly applied the
§ 1B1.3 standard addressed in Becerra to determinations of
drug quantities under § 841(b). 322 F.3d 700, 704 (9th Cir.
2003). Banuelos stated that “in order to sentence [the
defendant] pursuant to § 841(b)(1)(A)—or any penalty
provision tied to a particular type or quantity of drug—the
district court was required to find not only that the conspiracy
distributed a particular type and quantity of drugs, but also
that the type and quantity were either within the scope of [the
defendant’s] agreement with his coconspirators or that the
type and quantity were reasonably foreseeable to [the
defendant].” Id. (emphasis added).

    In reaching this conclusion, Banuelos applied the
disjunctive formulation of § 1B1.3(a)(1)(B) set forth in
Becerra, even though the Sentencing Commission had
amended the Guidelines in 1992 and adopted a conjunctive
approach. Section 1B1.3 of the 1992 version of the
Guidelines provided that “in the case of a jointly undertaken
criminal activity . . . all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity” would be considered “relevant conduct.”
U.S.S.G. § 1B1.3(a)(1)(B) (1992). The application notes
reiterate this language, stating that “[i]n the case of a jointly
undertaken criminal activity [§ 1B1.3(a)(1)(B)] provides that
                    UNITED STATES V. TORRES                           17

a defendant is accountable for the conduct (acts and
omissions) of others that was both: (i) in furtherance of the
jointly undertaken criminal activity; and (ii) reasonably
foreseeable in connection with that criminal activity.” Id.
§ 1B1.3 cmt. n.2. This formulation differed from the one
considered in Becerra and Banuelos not only because it was
conjunctive, but also because it required a finding that the
conduct was “in furtherance of” the jointly undertaken
criminal activity rather than require a finding that the conduct
at issue was “within the scope” of the defendant’s agreement
with his coconspirators.9

    In United States v. Ortiz, we recognized for the first time
that the Guidelines formulation of § 1B1.3 had changed in
1992. 362 F.3d 1274, 1275 (9th Cir. 2004). We explained
that under the prior version of the Guidelines, the standard for
determining relevant conduct was disjunctive: “that each
conspirator is to be held accountable for conduct that he
reasonably foresaw or which fell within the scope of his
particular agreement.” Id. Under the new Guidelines
language, we explained, the test was conjunctive, and we
expressly held that “a district court must find that the conduct
of others was both jointly undertaken and reasonably
foreseeable for § 1B1.3(a)(1)(B) as revised in 1992 to apply.”
Id. at 1277.10 (Ortiz did not consider the distinction between


    9
      The Sentencing Commission again revised § 1B1.3 in 2015, adding
a “within the scope” requirement. The conduct in question must now be
reasonably foreseeable, in furtherance of the conspiracy, and “within the
scope of the jointly undertaken criminal activity.”             U.S.S.G.
§ 1B1.3(a)(1)(B) (2015).
    10
        Despite our conclusion in Ortiz, we subsequently held that it was
not plain error to use a disjunctive instruction for jointly undertaken
activities under § 1B1.3 of the Guidelines. See United States v. Reed,
18                  UNITED STATES V. TORRES

our “within the scope” requirement and the Guidelines’ new
“in furtherance of” requirement.) We accordingly applied the
revised Guidelines standard in considering the defendant’s
challenge to his sentence and concluded that the district court
had correctly found that the defendant was responsible for
specific quantities of drugs “because they were in furtherance
of the conspiracy in which [the defendant] was involved and
of which he had knowledge.” Id.

    The defendants argue that we are now compelled to apply
the conjunctive standard adopted in Ortiz to determine the
quantities of drugs under § 841(b). The defendants reason
that Becerra stated that there was “no reason why sentencing
under the statutory mandatory minimums should differ” from
the Guidelines, 992 F.2d at 967 n.2. By this logic, whenever
the Sentencing Commission revises its standard for
determining relevant conduct under § 1B1.3, we are bound to



575 F.3d 900 (9th Cir. 2009). In Reed, we considered the defendant’s
claim that there was “error in establishing his base offense level under the
Guidelines,” because “the special verdict form relating to the charged drug
quantity” required under the Guidelines asked the jury to determine
whether the drug quantity was “either within the scope of the defendant’s
agreement with his co-conspirators or . . . was reasonably foreseeable” to
the defendant. Id. at 927. Under the amended Guidelines, the relevant
conduct for sentencing had to be both “(i) in furtherance of the jointly
undertaken criminal activity; and (ii) reasonably foreseeable.” Id.
(emphasis added). Without mentioning Ortiz, we concluded that the
disjunctive formulation was not plain error for two reasons: First, the
formulation was consistent with our prior opinion in Banuelos. Id.
Second, the defendant could not show prejudice because he was already
subject to a mandatory minimum life sentence under § 841(b)(1)(A)
regardless of the applicable Guidelines range, and because the defendant
had “personally received” the requisite drug quantity. Id. at 928. Because
Reed did not address the standard applicable to determining drug
quantities under § 841(b), it does not affect the analysis here.
                 UNITED STATES V. TORRES                     19

change our interpretation of § 841(b) to conform to the
Guidelines. According to defendants, Jury Instruction 50
therefore should have required the jury to determine what
drug quantity was both “reasonably foreseeable to each
defendant” and in furtherance of jointly undertaken activity.

    The defendants’ argument fails because neither the
Sentencing Commission’s 1992 revisions to § 1B1.3 nor our
interpretation of § 1B1.3 in Ortiz constitutes intervening
controlling authority that is “clearly irreconcilable” with
Banuelos. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc). Revisions to the Guidelines do not
themselves constitute intervening controlling authority,
because the Guidelines do not affect our interpretation of a
statute such as § 841. “While in some cases the sentencing
guidelines may be instructive in interpreting a federal statute,
nothing in the guidelines requires us to apply guideline
definitions in construing a federal sentencing statute.” United
States v. Liquori, 5 F.3d 435, 438 (9th Cir. 1993) (holding
that the Guidelines’ definition of consolidated offenses was
“not applicable” to a statutory minimum sentence imposed
under § 841). Indeed, Banuelos itself followed Becerra’s
interpretation of § 841(b) rather than change that
interpretation to conform to § 1B1.3 as revised in 1992. We
should follow the same course here. Nor does our statement
in Becerra that we “see no reason” why sentencing under the
mandatory minimums in § 841(b) should differ from
sentencing under the then-mandatory Guidelines, 992 F.2d at
967 n.2, constitute a holding that our interpretation of
§ 841(b) must change when the Sentencing Commission
revises its definition of “relevant conduct” under § 1B1.3.
Rather, this comment merely explained why we rejected the
government’s argument that it need prove only the amount of
cocaine “involved” in an offense and not the amount of drugs
20               UNITED STATES V. TORRES

for which the defendant was individually responsible. Id.
Because there has been no intervening controlling authority
overruling our interpretation of § 841(b) in Banuelos, we are
bound by Banuelos’s interpretation of § 841(b) as requiring
the trier of fact to find that the type and quantity of drugs
“were either within the scope of [the defendant’s] agreement
with his coconspirators or that the type and quantity were
reasonably foreseeable to [the defendant].” 322 F.3d at 704.

    Although we are bound by our precedent, applying
Becerra in this context is far from satisfactory, and we should
consider revisiting this issue en banc. Because Banuelos
relied on Becerra, and Becerra relied on the Guidelines, the
rationale underlying the interpretation of § 841(b) in Becerra
and Banuelos has been undermined. Moreover, Becerra’s
reasoning is not persuasive. Among other things, we have not
yet explained how our standard is consistent with the plain
text of § 841(b), which requires a court to first identify the
violation of § 841(a) at issue and then determine whether that
violation was “involving” specified quantities of drugs. To
the extent we interpret § 841(b) as requiring an analysis of
when a defendant can be held liable for the conduct of co-
defendants, we have not provided a reasoned explanation of
why our general principles for determining co-conspirator
liability do not apply to drug quantity determinations.
Generally, liability for the acts of co-conspirators is
determined by the Pinkerton doctrine, which “makes a
conspirator criminally liable for the substantive offenses
committed by a co-conspirator when they are reasonably
foreseeable and committed in furtherance of the conspiracy.”
United States v. Long, 301 F.3d 1095, 1103 (9th Cir. 2002)
(per curiam). A different standard applies in “establishing
vicarious liability for acts establishing the crime of
conspiracy itself,” where “a conspirator who joins a
                 UNITED STATES V. TORRES                    21

preexisting conspiracy is bound by all that has gone on before
in the conspiracy.” United States v. Garcia, 497 F.3d 964,
968 n.1 (9th Cir. 2007). It is unclear why these standards
should be set aside in favor of an advisory Sentencing
Guideline defining “relevant conduct,” a Guidelines term not
found in § 841(b). Nevertheless, despite these reasons to
revisit Banuelos, we do “not have the authority to ignore
circuit court precedent.” Mohamed v. Uber Techs., Inc.,
848 F.3d 1201, 1211 (9th Cir. 2016). We are bound by
Banuelos “unless and until” it is “overruled by a body
competent to do so.” Hart v. Massanari, 266 F.3d 1155,
1170 (9th Cir. 2001).

    The majority acknowledges that we “should be careful to
respect our precedent” but then declines to follow precedent
here because “[t]his is not the ordinary situation.” Majority
at 34–35 According to the majority, we should not follow our
precedent here because it is not equivalent to the Guidelines
approach, and we held “on at least three separate occasions,
that the same approach should be applied when analyzing
culpability under § 841(b) as is applied under the
Guidelines.” Majority at 35. This statement is misleading,
however, because the cases on which the majority relies,
Banuelos and United States v. Mesa-Farias, 53 F.3d 258 (9th
Cir. 1995), merely followed Becerra’s interpretation of
§ 841(b). As noted earlier, supra at 19, Banuelos faithfully
followed precedent instead of applying the Guidelines
approach: the then-effective Guidelines required application
of the conjunctive approach to analyzing culpability, see
supra at 16–17, but Banuelos applied Becerra’s disjunctive
approach instead. Banuelos, 322 F.3d at 705. And in Mesa-
Farias, we noted Becerra’s disjunctive test that “the quantity
of drugs be reasonably foreseeable,” but held that the test was
22               UNITED STATES V. TORRES

limited to convictions for conspiracy and did not apply to
convictions for possession. 53 F.3d at 260.

    Rather than follow our precedent, the majority attempts
to sidestep the issue by conducting a plain error analysis,
concluding that “even if the jury instructions were erroneous,
any error by the district court did not affect the defendants’
substantial rights.” Majority at 37 (emphasis added). But
this plain error analysis itself is flawed. First, there is no
colorable basis for holding that the district court erred. We
have never applied the conjunctive standard to § 841(b). Nor
have we ever required a finding that the conduct at issue was
“in furtherance of” jointly undertaken criminal activity, rather
than “within the scope” of the conspiracy. Instead, we have
held that the trier of fact must find that the type and quantity
of drugs were “either within the scope of [the defendant’s]
agreement with his coconspirators or that the type and
quantity were reasonably foreseeable to [the defendant].”
Banuelos, 322 F.3d at 704 (emphasis added). Like us, “[t]he
district court does not have the authority to ignore circuit
court precedent” and would have had no basis for applying
the conjunctive standard to § 841(b). Mohamed, 848 F.3d at
1211.

    Second, the majority’s plain error analysis merely adopts
the Becerra test under a different name. The majority reasons
that had the jury been instructed to find that the quantity of
drugs was “in furtherance of a jointly undertaken criminal
activity” as well as being reasonably foreseeable, the jury
almost certainly would have found the “in furtherance of”
element because there was substantial evidence that each
defendant was involved in the Puente-13 drug conspiracy.
Majority at 38. As a practical matter, this reasoning means
that whenever a defendant has been convicted of a conspiracy
                 UNITED STATES V. TORRES                      23

to distribute drugs, and the jury finds the quantity of drugs is
reasonably foreseeable, it would never be plain error to omit
the “in furtherance of” instruction. In effect, the majority’s
plain error analysis makes the “in furtherance” requirement
superfluous.

    Finally, the majority’s approach is flawed for an
institutional reason. Because it applies a plain error analysis,
the majority concludes that it is “not prompted to call for our
court to revisit the broader issue en banc in the context of this
case because in the end it would not alter its outcome.”
Majority at 39. But it is our responsibility as a circuit court
to clarify confusing or contradictory precedent, particularly
where the majority’s “plain error” resolution effectively
deprives the defendants of the benefit of the “in furtherance”
language to which they would be entitled under the
conjunctive approach. That is what we did in Ortiz where we
sought to “eliminate confusion” by clarifying the standard for
applying the revised § 1B1.3, even though the standard did
not alter the outcome in that case. Ortiz, 362 F.3d at 1275,
1277. Or, if the majority believes that this case is controlled
by contradictory precedents which will ultimately need en
banc review to sort out, Majority at 36, then under our
precedent we “must call for en banc review” sua sponte,
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.
1992) (en banc) (per curiam) (quoting Atonio v. Wards Cove
Packing Co., 810 F.2d 1477, 1479 (9th Cir. 1987) (en banc)).
In short, rather than effectively kick the can down the road,
we should either clarify the law or make a sua sponte call for
rehearing en banc.

   Because we remain bound by Banuelos, the district court
did not err in only requiring the jury to determine what
quantities of drugs were reasonably foreseeable to each
24               UNITED STATES V. TORRES

defendant in connection with his criminal activity. This
instruction satisfied Banuelos’s requirement that the trier of
fact find “the quantity of drugs that either (1) fell within the
scope of the defendant’s agreement with his coconspirators or
(2) was reasonably foreseeable to the defendant.” 322 F.3d
at 704.

                               B

    Defendant Aldana challenges the jury instructions for
Count Seven (conspiracy to distribute methamphetamine in
violation of § 846) on a separate ground: that the district court
erred because the jury instructions did not allow him to
present his theory that he was involved in a separate
conspiracy unconnected to the actions of the other
defendants. At trial, several defendants (including Aldana)
asked the district court to include Ninth Circuit Model
Criminal Jury Instruction 8.22 on “multiple conspiracies,”
which states:

        You must decide whether the conspiracy
        charged in the indictment existed, and, if it
        did, who at least some of its members were. If
        you find that the conspiracy charged did not
        exist, then you must return a not guilty
        verdict, even though you may find that some
        other conspiracy existed. Similarly, if you
        find that any defendant was not a member of
        the charged conspiracy, then you must find
        that defendant not guilty, even though that
        defendant may have been a member of some
        other conspiracy.
                 UNITED STATES V. TORRES                    25

The district court denied the defendants’ request for this
instruction at trial. It explained that such an instruction may
be required “if the defendants were involved only in a minor
conspiracy unrelated to the overall conspiracy.” In this case,
however, the court indicated that rather than showing
individual drug conspiracies, “the evidence has been plentiful
and consistent that Puente 13 was an enterprise with certain
specified objectives” including drug dealing, gang welfare or
maintenance, and gang structure.

    Aldana argues that the district court erred in declining to
give a multiple conspiracies instruction because based on the
evidence at trial, a jury could have rationally concluded that
his drug distribution activities were not part of the Puente-13
conspiracy described in Count 7, but rather comprised
separate conspiracies involving different co-conspirators.
According to Aldana, the government presented evidence that
Aldana personally took part in only two sets of transactions
directly involving methamphetamine possession and
distribution: the 1998–2002 purchases and sales (based on
Villa’s testimony) and the 2008 purchases and sales (based on
Nunez’s testimony). See supra at 10–11. Aldana claims that
the government failed to connect either of these sets of
transactions with the activities of the other named defendants,
and therefore failed to show that Aldana had anything other
than individual agreements with Villa and Nunez.
Accordingly, Aldana claims, the district court erred in
denying his request for the § 8.22 multiple conspiracies
instruction.

    We disagree. “A defendant is entitled to an instruction on
his theory of the case if the theory is legally cognizable and
there is evidence upon which the jury could rationally find for
the defendant.” United States v. Morton, 999 F.2d 435, 437
26               UNITED STATES V. TORRES

(9th Cir. 1993). A trial court need not provide an instruction
if “the evidence, as described in the defendant’s offer of
proof, is insufficient as a matter of law to support the
proffered defense.” United States v. Dorrell, 758 F.2d 427,
430 (9th Cir. 1985). A defendant is entitled to a multiple
conspiracies instruction “where the indictment charges
several defendants with one overall conspiracy, but the proof
at trial indicates that a jury could reasonably conclude that
some of the defendants were only involved in separate
conspiracies unrelated to the overall conspiracy charged in
the indictment.” United States v. Anguiano, 873 F.2d 1314,
1317 (9th Cir. 1989) (emphasis added). Accordingly, Aldana
would have been entitled to a multiple conspiracies
instruction if there were evidence from which the jury could
rationally conclude that Aldana was not involved in the
conspiracy described in Count 7, but was only involved in
separate conspiracies unrelated to the Count 7 conspiracy.

     Here, there was no evidence presented at trial from which
the jury could have rationally concluded that Aldana was only
involved in a separate conspiracy. Both Nunez and Villa
were, like Aldana and the other defendants, members of
Puente-13 and obtained methamphetamine from Puente-13
suppliers. Further, Aldana’s relationship with Nunez in
particular extended well beyond the drug deals described at
trial. Nunez testified that he regularly worked with Aldana
on behalf of Rafael Munoz Gonzalez and that Aldana took
over Nunez’s position as chief lieutenant when Aldana got
out of prison. According to Nunez’s testimony, Nunez and
Aldana worked together to locate drug dealers who had failed
to pay taxes and were in hiding. They had six or seven
confrontations with such dealers, and took their cars in lieu of
cash payments. Nunez spoke to Aldana in prison multiple
                    UNITED STATES V. TORRES                             27

times regarding Puente-13 business, and Aldana used Nunez
as a conduit to communicate with Rafael Munoz Gonzalez.

    Even if Nunez and Villa were not involved in all aspects
of the conspiracy alleged in the indictment, Aldana’s
interactions with them furthered the Puente-13 conspiracy
because they contributed to the gang’s efforts to distribute
drugs and to control drug-related activities within its territory.
“A single conspiracy may involve several subagreements or
subgroups of conspirators.” United States v. Bibbero,
749 F.2d 581, 587 (9th Cir. 1984); see also United States v.
Perry, 550 F.2d 524, 533 (9th Cir. 1977) (“To suggest that
defendants should be acquitted of the general conspiracy
charge just because some of them met singly with other
defendants and conspired with them to carry out the overall
common distribution plan is a misapplication of the law of
conspiracy.”). Further, Aldana did not adduce any testimony
or other evidence at trial that undercut the government’s
evidence regarding Aldana’s activities in furtherance of
Puente-13’s objectives.11 Absent such testimony, there is no
“evidence upon which the jury could rationally sustain the
defense” that Aldana was a member only of separate
conspiracies and not of the Puente-13 conspiracy. United
States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984) (per
curiam). Accordingly, the district court did not err by
denying Aldana’s request for a multiple conspiracies
instruction.



    11
       On appeal, Aldana does not argue that the Puente-13 conspiracy did
not exist or that he was not a member of it, and so does not explain how
he is entitled to the multiple conspiracies instruction that he seeks, which
allows a jury to find a defendant not guilty if the charged conspiracy did
not exist or the defendant was not a member.
28               UNITED STATES V. TORRES

                              III

    All four defendants challenge the district court’s
imposition of mandatory minimum sentences under 21 U.S.C.
§ 841. Section 841(a) makes it unlawful for any person “to
manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance.”
21 U.S.C. § 841(a)(1). Where a violation of § 841(a)
involved 50 or more grams of methamphetamine or 500 or
more grams of a substance “containing a detectable amount
of methamphetamine,” a defendant with a prior conviction for
a felony drug offense “shall be sentenced to a term of
imprisonment which may not be less than 20 years,” while a
defendant with two or more prior convictions for a felony
drug offense “shall be sentenced to a mandatory term of life
imprisonment without release.” Id. § 841(b)(1)(A)(viii).

    In this case, all four defendants were convicted under
21 U.S.C. § 846 of conspiracy to violate § 841(a)(1). Section
846 provides that “[a]ny person who . . . conspires to commit
any offense defined in [§ 841] shall be subject to the same
penalties” as a person who violates § 841(a). Each of the
defendants was therefore subjected to an enhanced sentence
under § 841(b)(1)(A)(viii) because of the drug quantity and
their prior conviction or convictions. The defendants raise
two challenges to the use of their prior state convictions to
subject them to mandatory minimum sentences.

                              A

    First, the four defendants jointly argue that their prior
state convictions did not trigger sentencing enhancements
under § 841(b) because they were not committed “prior” to
the offense for which they were convicted in this case. The
                     UNITED STATES V. TORRES                             29

defendants point out that some of the conduct alleged in
Count Seven occurred prior to 2003 and argue that this pre-
2003 conduct also underlays the state convictions that were
used to enhance their sentences under § 841(b). Because the
defendants’ state convictions overlap temporally with their
convictions in this case, the defendants argue that the state
convictions cannot be considered “prior” to the offense of
conviction in this case.

    We disagree. In United States v. Baker, the appellant
similarly argued that his California state narcotics convictions
could not be used to enhance his federal sentence under
§ 841(b) because “(1) [his] state convictions were related to
the charges in the federal trial, and (2) his entire involvement
in the [federal] methamphetamine conspiracy predated the
finality of his state convictions.” 10 F.3d 1374, 1420 (9th
Cir. 1993), overruled on other grounds by United States v.
Nordby, 225 F.3d 1053 (9th Cir. 2000). We rejected the
appellant’s arguments, holding that the fact “the federal and
state charges derive in part from the same activity does not
preclude using the state convictions to enhance the federal
sentence” where “the dates, events, and locations involved in
the federal trial covered a much broader range of criminal
conduct than the state convictions.” Id. So long as the jury
concludes “that [the defendant] participated in the conspiracy
during the entire time period alleged in the indictment” and
that period “extended beyond the date of the state
convictions,” the related state conviction may properly be
used to enhance the defendant’s sentence. Id. at 1421.12


    12
       We reject the defendants’ argument that Baker was overruled by
Apprendi v. New Jersey, 530 U.S. 466 (2000). Though Apprendi did
overrule portions of Baker permitting the district court to find drug
quantities for sentencing purposes, it did not address the use of prior state
30                  UNITED STATES V. TORRES

    Here, the jury verdict necessarily determined that the
defendants’ conspiracy continued past the dates when their
state convictions became final. As established in the § 851
proceeding, all of the defendants’ prior convictions occurred
before 2003. In contrast, the indictment alleged that the
conspiracy continued until “on or about June 2, 2010.”
Because the jury was required to find that the criminal
agreement existed “on the dates set forth in the indictment”
in order to convict on Count Seven, the jury’s guilty verdict
necessarily established that the conspiracy existed until June
2010, well past the dates that the defendants’ prior
convictions became final. The district court therefore did not
err in relying on the defendants’ prior drug convictions to
impose mandatory minimum penalties under § 841(b).
Baker, 10 F.3d at 1420–21.13

                                    B

    The defendants next argue that §§ 841(b) and 851 violate
the Sixth Amendment as interpreted in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and Alleyne v. United States,
133 S. Ct. 2151 (2013). In those cases, the Supreme Court
held that “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed


convictions to enhance federal sentences. See Nordby, 225 F.3d at 1059,
overruled on other grounds by United States v. Buckland, 289 F.3d 558
(9th Cir. 2002) (en banc).
     13
       Two of our sister circuits have reached the same conclusion. See
United States v. Smith, 451 F.3d 209, 224–25 (4th Cir. 2006) (holding that
“prior felony drug convictions that fall within the conspiracy period may
be used to enhance the defendant’s sentence if the conspiracy continued
after his earlier convictions were final”); see also United States v. Fink,
499 F.3d 81, 87–88 (1st Cir. 2007) (same).
                 UNITED STATES V. TORRES                   31

statutory maximum,” Apprendi, 530 U.S. at 490, or
“increases the mandatory minimum,” Alleyne, 133 S. Ct. at
2155, must be submitted to a jury and proved beyond a
reasonable doubt. The district court, however, may find “the
fact of a prior conviction.” Apprendi, 530 U.S. at 490;
Alleyne, 133 S. Ct. at 2168; see also Almendarez-Torres v.
United States, 523 U.S. 224, 226–27 (1998). The defendants
argue that while a court may find the existence of a
“conviction,” the determination that the conviction is “prior”
in time must be made by the jury. Therefore, defendants
argue, because § 851 permits a judge to determine whether
the defendant’s “prior conviction for a felony drug offense”
occurred before the instant offense, it is invalid. We reject
the defendants’ argument. By permitting a court to find “the
fact of a prior conviction,” Apprendi, 530 U.S. at 490
(emphasis added), the Supreme Court empowered a court to
determine that the conviction was prior to the case before the
court. United States v. Covian-Sandoval is not to the
contrary; that case merely held that the district court could
not find the fact of a final judgment in a case, such as an
immigration proceeding, that did not give the defendant a
right to jury trial or proof beyond a reasonable doubt.
462 F.3d 1090, 1097 (9th Cir. 2006).

   AFFIRMED.
32                  UNITED STATES V. TORRES

CLIFTON, Circuit Judge, with whom Judge Block concurs:1

    Section 841(b) sets forth the penalties to be applied for
violations of the drug offenses enumerated in § 841(a). The
penalties differ depending on the drug quantity “involv[ed]”
in the violation of § 841(a). 21 U.S.C. § 841(b). As the
portion of her opinion that is Judge Ikuta’s special
concurrence explains, Op. at 14–16, we first faced the
question of how to assign individual responsibility for a
particular drug quantity in United States v. Becerra, 992 F.2d
960 (9th Cir. 1993). In that case, the district court sentenced
the defendants to the statutory mandatory minimum based on
the drug quantity associated with their offenses. Id. at 963.
On appeal, we explained that under the Sentencing
Guidelines “each conspirator may be sentenced only for the
quantity of drugs that he reasonably foresaw would be
distributed or that fell within the scope of his own agreement
with his co-conspirators.” Id. at 966 (emphasis added).2 The
special concurrence refers to this standard as the “disjunctive
formulation,” and we adopt that terminology as well.

    The court in Becerra applied that same disjunctive
formulation to quantity determinations under § 841(b),
“reject[ing] the government’s argument that sentencing under


    1
      This opinion states the opinion of the majority of the court as to the
defendants’ challenge to Jury Instruction 50. See Op. at 6 n.1.
     2
      As the special concurrence notes, Op. at 15 n.8, the court in Becerra
appeared to be relying on the language present in the 1991 version of the
Guidelines, which provided in the application notes to § 1B1.3 that
defendants should not be held accountable for conduct that “was neither
within the scope of the defendant’s agreement, nor was reasonably
foreseeable in connection with the criminal activity the defendant agreed
to jointly undertake.” U.S.S.G. § 1B1.3 cmt. n.1 (1991).
                 UNITED STATES V. TORRES                    33

the statutory mandatory minimums should differ from the
Guidelines.” Id. at 967 n.2. The court stated that it saw “no
reason why sentencing under the statutory mandatory
minimums should differ” from sentencing under the
Guidelines because the statutory minimums “are, in essence,
part of the Guidelines scheme.” Id.

    Our subsequent cases interpreting Becerra reaffirmed this
aspect of its holding. In United States v. Mesa-Farias,
53 F.3d 258, 260 (9th Cir. 1995), we stated that Becerra
“required . . . that sentencing for conspiracy be the same
under § 841(b) as under the Sentencing Guidelines.”
Similarly, in United States v. Banuelos, 322 F.3d 700, 704
(9th Cir. 2003), a case involving a conspiracy to distribute
marijuana, we referenced the disjunctive formulation applied
in Becerra and noted that this standard was not only “well-
settled as a matter of sentencing under the Guidelines” but
has also been “applied . . . to sentencing under the statute of
offense.”

     However, the disjunctive formulation was not in fact as
“well-settled” as the majority in Banuelos suggested. As the
special concurrence has explained, Op. at 16–17, by the time
that case was decided, in 2003, the Guidelines had already
been amended in 1992 to require that defendants be held
accountable only for the conduct of others that was both “(i)
in furtherance of the jointly undertaken criminal activity; and
(ii) reasonably foreseeable in connection with that criminal
activity.” U.S.S.G. § 1B1.3 cmt. n.2 (1992) (emphasis added).
We will refer to this test as the “conjunctive formulation.”

    We first explicitly recognized the shift in the Guidelines
from the disjunctive to the conjunctive formulation in United
States v. Ortiz, 362 F.3d 1274 (9th Cir. 2004). In that case we
34                  UNITED STATES V. TORRES

wrote “to clarify the proper standard for determining relevant
conduct for jointly undertaken criminal activity under USSG
§ 1B1.3(a)(1)(B) as amended in 1992.” Id. at 1275. Under the
new conjunctive formulation, we emphasized, “the conduct
must be both in furtherance of jointly undertaken activity and
reasonably foreseeable.” Id. But because Ortiz was only a
Guidelines case, it did not have occasion to determine
whether the standard applied under § 841(b) should change
along with the Guidelines standard.

   We face that question directly here. The defendants’
argument is straightforward. If our holdings in Becerra,
Mesa-Farias, and Banuelos require that the same standard be
applied when sentencing for a conspiracy under § 841(b) as
under the Guidelines, defendants argue, then when Ortiz
changed the test to be applied under the Guidelines, it also
changed the test to be applied under § 841(b). That is a strong
argument.3

    The special concurrence would prefer to apply what it
identifies as the holding of our precedents, though the logic
has departed. In Judge Ikuta’s view, “neither the Sentencing
Commission’s 1992 revisions to § 1B1.3 nor our
interpretation of § 1B1.3 in Ortiz constitutes intervening
controlling authority that is ‘clearly irreconcilable’ with
Banuelos.” Op. at 19 (quoting Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc)). We understand this
position. Each three-judge panel should be careful to respect
our precedent, and as the special concurrence correctly notes,


     3
      As the special concurrence points out, Op. at 17 n.9, the language
of § 1B1.3 was revised yet again in 2015. The current version was not
applicable at the time of Defendants’ trial, and they do not argue that it
should have been applied by the district court.
                 UNITED STATES V. TORRES                   35

changes to the Sentencing Guidelines do not ordinarily
“affect our interpretation of a statute such as § 841.” Op. at
19.

    This is not the ordinary situation, though. In connection
with § 841(b), this court has clearly held, on at least three
separate occasions, that the same approach should be applied
when analyzing culpability under § 841(b) as is applied under
the Guidelines. We provided no other reason in Banuelos for
applying the disjunctive formulation to § 841(b) other than
that the same test was then applied under the Guidelines. See
Banuelos, 322 F.3d at 704. That could, therefore, also be
identified as the holding of our precedents. Now that the
disjunctive formulation is no longer applied under the
Guidelines, the reasoning of Banuelos in favor of the
disjunctive formulation has been completely undermined.

    In support of her view that Banuelos remains good law,
Judge Ikuta’s special concurrence highlights that “Banuelos
itself followed Becerra’s interpretation of § 841(b) rather
than change that interpretation to conform to § 1B1.3 as
revised in 1992.” Op. at 19. But this argument seems more a
rationalization after the fact than a description of the
reasoning in Banuelos, as the panel in that case did not
indicate that it was aware of the 1992 change in the
Guidelines. Indeed, it explicitly referred to the already-
outdated disjunctive formulation as “well-settled . . . under
the Guidelines.” Banuelos, 322 F.3d at 704. Furthermore, the
defendant in Banuelos did not “dispute that the district court
conducted the proper substantive inquiry” in applying the
disjunctive formulation, as we noted in Ortiz, 362 F.3d at
1277 (quoting Banuelos, 322 F.3d at 704). The Banuelos
panel did not have reason to focus its attention on the change
in the Guidelines approach. That decision should not,
36               UNITED STATES V. TORRES

therefore, be understood to endorse a divergence between the
standard to be applied under § 841(b) and the Guidelines. We
did not appear to be aware in that decision that there was a
divergence.

    A similar lack of awareness appears to have infected our
decision in United States v. Reed, 575 F.3d 900 (9th Cir.
2009). In that case we held that it was not plain error to make
use of the disjunctive formulation in establishing a
defendant’s base offense level under the Guidelines, in spite
of the contrary language in the Guidelines themselves. Our
decision in Reed did not cite to our holding in Ortiz that the
conjunctive formulation was required under the Guidelines,
however. Instead, it held that the use of the disjunctive
approach was not plain error because it was “consistent with
our prior statements of the law relating to sentencing under
the statutory mandatory minimum,” citing to Banuelos. Reed,
575 F.3d at 927. In so doing, it appeared to endorse the result
that the standard to be applied under § 841(b) differs from the
applicable Guidelines standard, regardless of our court’s
multiple statements, including in Banuelos itself, that they
should be the same.

    Ultimately, en banc review will likely be necessary to sort
the whole mess out. As the special concurrence points out,
Op. at 20–21, there are other reasons to revisit some of the
issues raised in Becerra and Banuelos. Even if we decide to
maintain the result of Banuelos, that the disjunctive
formulation should be applied to sentencing under § 841(b),
we would have an opportunity to give reasoning for that
result that makes more sense than our current undermined
logic.
                     UNITED STATES V. TORRES                              37

    We do not have to resolve those questions to reach a
result in this case, however. There is another basis on which
we can and do hold that the convictions are affirmed on this
issue. Because the defendants did not object to Jury
Instruction 50 on the basis they raise here, the plain error
standard of review applies. United States v. Ameline,
409 F.3d 1073, 1078 (9th Cir. 2005) (en banc).4 Under that
standard, relief is warranted only in the presence of “(1) error,
(2) that is plain, and (3) that affects substantial rights.” Id.
(quoting United States v. Cotton, 535 U.S. 625, 631 (2002)).
“If these three conditions of the plain error test are met, an
appellate court may exercise its discretion to notice a
forfeited error that (4) ‘seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’” Id.
(quoting Cotton, 535 U.S. at 631).

    In this case, even if the jury instructions were erroneous,
any error by the district court did not affect the defendants’
substantial rights. In order to satisfy this prong of the test,
defendants must “establish ‘that the probability of a different
result is sufficient to undermine confidence in the outcome of

    4
      Defendants argue that review should be de novo because they did in
fact object to the content of Jury Instruction 50. During deliberations, the
jury sent a note to the district judge asking about the definition of the term
“reasonably foreseeable” in the jury instructions. The defendants objected
to the definition that was ultimately provided to the jury. This objection
was not enough to preserve the issue of whether the district court should
have used the conjunctive formulation. Defendants solely contested the
definition of “reasonably foreseeable” and did not argue to the district
court that the jury was also required to find that the drug quantity was
associated with conduct undertaken “in furtherance of the jointly
undertaken criminal activity.” Thus, their objection was not “specific
enough to ‘bring into focus the precise nature of the alleged error.’”
United States v. Pineda-Doval, 614 F.3d 1019, 1026 (9th Cir. 2010)
(quoting Palmer v. Hoffman, 318 U.S. 109, 119 (1943)).
38               UNITED STATES V. TORRES

the proceeding.’” Id. (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004)). Defendants have not met
that burden here. Had the jury been correctly instructed that
it was required to find that the drug quantities at issue were
associated with conduct “in furtherance of the jointly
undertaken criminal activity,” it seems highly unlikely that a
different result would have been reached.

    Jury Instruction 50 pertained to the specific drug quantity
associated with the conspiracy to distribute
methamphetamine alleged in Count Seven. The government
presented substantial evidence that each of the four
defendants was personally involved in this drug distribution
conspiracy. Rafael Munoz Gonzalez was in charge of Puente-
13 and its drug distribution activities. Cesar Munoz Gonzalez
managed drug production and sales. Aldana assisted in
extorting drug payments from rival gangs and collecting
“taxes” associated with drug distribution activities. Torres
played a role in both transporting and selling the drugs. Based
on this evidence, it is hard to see how a jury could find that
the quantity of drugs at issue was not distributed by the gang
“in furtherance of the jointly undertaken criminal activity.”
Drug dealing was not something that happened on the
sidelines – it was the primary object of the conspiracy of
which all defendants were members.

    An additional factor demonstrating the lack of prejudice
here is that the jury found the defendants individually
responsible for conspiring to distribute the same quantity of
drugs at issue in Count Seven as part of racketeering activity
charged elsewhere in the indictment. With respect to the
substantive racketeering offenses charged in Count Two, the
jury found that each of the four defendants “committed a
pattern of racketeering activity” that included conspiring to
                 UNITED STATES V. TORRES                     39

distribute at least 50 grams of pure methamphetamine or
500 grams of a mixture or substance containing a detectable
amount of methamphetamine. This conclusion would be hard
to square with a jury finding that this quantity of drugs was
not distributed in furtherance of a jointly undertaken criminal
conspiracy.

    Because relief is not warranted under the plain error
standard of review, we affirm the defendants’ sentences. We
are not prompted to call for our court to revisit the broader
issue en banc in the context of this case because in the end it
would not alter its outcome. See Go v. Holder, 744 F.3d 604,
614 (9th Cir. 2014) (Wallace, J., specially concurring) (“[W]e
have also held that even where the orderly development of
our case law might benefit from an en banc review, it is not
necessary to engage in such review if a particular case does
not compel us to do so. Here, . . . because we arrive at the
same result regardless of the level of deference provided to
the [government’s] interpretation of [the regulation], this case
does not require us to call for en banc review[.]” (citation and
internal quotation marks omitted)); Vasquez v. Astrue,
572 F.3d 586, 593 n.5 (9th Cir. 2009) (declining to call case
en banc to resolve intra-circuit conflict when “[the] case does
not require” it, even though “orderly development of the
Circuit’s law in [the] area might benefit from an en banc
review”); United States v. Frank, 956 F.2d 872, 879 (9th Cir.
1992) (“We do not attempt to resolve [the intra-circuit]
conflict in this matter because we conclude that the district
court’s ruling would not be erroneous under either
standard.”).

    We remain concerned, though, about the state of our
caselaw. As it stands, our precedent either is in conflict or
calls for us to apply the disjunctive formulation to sentencing
40              UNITED STATES V. TORRES

under § 841(b) and the conjunctive formulation to sentencing
under the Guidelines, even though we adopted the disjunctive
formulation under § 841(b) in the first place to make the two
approaches identical. That inconsistency cannot stand. In a
case where it matters, it should be addressed en banc.
