                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 16-50429
                 Plaintiff-Appellee,
                                                    D.C. No.
                     v.                          3:16-cr-00673-
                                                     LAB-1
MARTIN BRIAN JAUREGUI,
              Defendant-Appellant.                  OPINION



        Appeal from the United States District Court
          for the Southern District of California
         Larry A. Burns, District Judge, Presiding

             Argued and Submitted July 10, 2018
                    Pasadena, California

                      Filed March 22, 2019

  Before: Marsha S. Berzon and N. Randy Smith, Circuit
       Judges, and P. Kevin Castel, * District Judge.

                 Opinion by Judge Berzon;
                Concurrence by Judge Berzon;
                  Dissent by Judge Castel



     *
       The Honorable P. Kevin Castel, United States District Judge for
the Southern District of New York, sitting by designation.
2                 UNITED STATES V. JAUREGUI

                          SUMMARY **


                          Criminal Law

    Vacating a sentence and remanding for resentencing, the
panel held that a sentence for conspiracy to import
methamphetamine cannot, consistent with the Sixth
Amendment’s jury trial guarantee, be sustained solely by the
defendant’s admission that he conspired to import marijuana
but that it was “reasonably foreseeable that the controlled
substance may be methamphetamine.”

    The panel held that the district court erred in imposing a
sentence exceeding the statutory maximum for conspiracy to
import marijuana based on this admission, and that under
plain error review, reversal is warranted.

    Concurring, Judge Berzon wrote separately to emphasize
the confusion that United States v. Banuelos, 322 F.3d 700
(9th Cir. 2003), has wrought, and to suggest that this court
should reconsider it en banc.

    Dissenting, District Judge Castel wrote that there was no
plain error in sentencing the defendant for participation in a
conspiracy to import methamphetamine, and that on this
record he does not believe the defendant can be sentenced
lawfully for the crime of conspiracy to import marijuana, a
crime for which he has been neither charged nor convicted.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
               UNITED STATES V. JAUREGUI                  3

                       COUNSEL

Kimberly S. Trimble (argued), Federal Defenders of San
Diego, Inc., San Diego, California, for Defendant-Appellant.

Mark R. Rehe (argued), Assistant United States Attorney;
Robert S. Brewer, United States Attorney; Helen H. Hong,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division; Nicole Ries Fox, Assistant United States
Attorney; Office of the United States Attorney, San Diego,
California; for Plaintiff-Appellee.


                        OPINION

BERZON, Circuit Judge:

    Under federal law, the statutory maximum sentence for
conspiracy to import a controlled substance depends on the
specific, agreed-upon controlled substance “involv[ed].”
21 U.S.C. §§ 960(b), 963. We consider whether, consistent
with the Sixth Amendment’s jury trial guarantee, Martin
Jauregui’s     sentence    for conspiracy to          import
methamphetamine can be sustained solely by his admission
that he conspired to import marijuana but it was “reasonably
foreseeable” that methamphetamine would be imported. We
hold that it cannot.

                             I

                             A

   In January 2016, Jauregui attempted to cross the
U.S.-Mexico border into Southern California. He was foiled
when border agents discovered packages containing over six
4               UNITED STATES V. JAUREGUI

kilograms of methamphetamine in his car. Jauregui was
arrested and questioned by two FBI agents.

    During his interrogation, Jauregui told the agents he did
not know there were drugs in the car, and went on to give the
agents the following account: He had previously agreed with
a man named Victor to smuggle marijuana into the United
States. As the plan progressed, Victor gave Jauregui a car
with the drugs loaded inside. At an uncle’s urging, however,
Jauregui decided not to go through with the marijuana
smuggling and returned the car to Victor.

    Later that day, Jauregui, wanting to visit his aunt near
San Diego, asked Victor to borrow the car he had just
returned. According to Jauregui, Victor told him that the
drugs had been removed from the car. Throughout his
interrogation, Jauregui repeatedly maintained that, at the
time he crossed the border, he was unaware that drugs of any
kind were hidden inside the car.

                              B

    Jauregui was charged with one count of conspiracy to
import methamphetamine, in violation of 21 U.S.C. §§ 952,
960, and 963, and one count of importation of
methamphetamine in violation of 21 U.S.C. §§ 952 and 960.
He pleaded guilty to the conspiracy count in exchange for
the government’s dismissal of the importation count.

    At the plea colloquy, Jauregui’s attorney at first provided
the following factual basis for his plea:

       Beginning on a date unknown and continuing
       up to January 31st, 2016, Mr. Jauregui was in
       agreement with at least two other persons to
       commit a crime of importing a schedule I or
                UNITED STATES V. JAUREGUI                     5

       schedule II controlled substance under
       federal law. He became a member of the
       conspiracy knowing of its object to import a
       controlled substance and intending to help
       accomplish that object. And it was
       reasonably foreseeable that the controlled
       substance may be methamphetamine.

For clarification, the district court asked Jauregui’s attorney,
“[W]hat was the point about it being whether he knew it was
methamphetamine or some other drug?” The attorney
explained that Jauregui “believed he was agreeing to import
marijuana, but it was reasonably foreseeable that the
substance would be methamphetamine under the Pinkerton
case,” referring to the Supreme Court’s decision in
Pinkerton v. United States, 328 U.S. 640 (1946).

   The district court then asked the government:

       [D]o you agree with that factual basis on the
       conspiracy to import methamphetamine?
       Because he’s pleading guilty to count one
       which      is      conspiracy    to    import
       methamphetamine, and a conspiracy is an
       agreement to do an illegal act. And if the
       illegal act is to import methamphetamine,
       then it’s not to import some other prohibited
       drug. So if that is what he’s pleading guilty
       to, then his factual basis is not adequate to
       satisfy count one unless the government is
       modifying         the      importation     of
       methamphetamine to be a conspiracy to
       import methamphetamine or some other
       prohibited drug.
6                  UNITED STATES V. JAUREGUI

             And if that’s the case, what guidelines
         apply, the methamphetamine guidelines or
         the marijuana guidelines? 1

    The prosecutor answered that “it’s going to be [the
government’s] position in sentencing that the
methamphetamine guidelines apply” and “that he knowingly
imported the drugs.” The district court pointed out that
“unlike an importation charge, a conspiracy charge
[requires] a mens rea to do the object of a conspiracy.” So,
the court explained, “if the object of the conspiracy is to
import methamphetamine, then you would have to know it
was methamphetamine.”

    In response, the prosecutor said, “I think that he has to
know that there was a possibility. I think he has to know that
it was reasonably foreseeable that it could have been
methamphetamine instead of marijuana.” Apparently
convinced, the district court noted that Jauregui had already
“admitted that,” and the prosecutor agreed. Thus, “[b]ased
on the Pinkerton theory and [Jauregui’s] agreement that it
was reasonably foreseeable that the drugs . . . he thought he
was bringing in could have been methamphetamine,” the
district court concluded that there was a factual basis for
Jauregui’s plea.

                                   C

   A few months later, the district court held a sentencing
hearing. In determining whether to apply a “minor role”


    1
      Actually, as we shall explain, the pivotal question is not which
guidelines apply, but which penalty provision of the relevant statute, 21
U.S.C. § 960(b), apply, and so what the maximum penalty is.
                 UNITED STATES V. JAUREGUI                      7

sentencing reduction, 2 the district court questioned
Jauregui’s version of events, noting that his story—that he
had initially agreed to smuggle drugs across the border but
had changed his mind—seemed “farfetched.” The
prosecutor responded that it had “pushed him very hard on
that” but that Jauregui, whom the prosecutor called “very
simple, very naïve,” nonetheless “kept to his story.” The
court, however, disbelieved Jauregui’s story and rejected
Jauregui’s request for a minor-role reduction.

    Jauregui’s attorney asked the district court to apply the
Sentencing Guidelines for marijuana, because “[t]he way
that [Jauregui] pleaded was that the agreement was for
marijuana, although it was reasonably foreseeable it could
be methamphetamine by the time it happened.” The district
court disagreed and so applied the Guidelines for
methamphetamine. The court ultimately sentenced Jauregui
to seventy-one months’ incarceration. Jauregui did not
object to the imposed sentence. This timely appeal followed.

                               II

    The Sixth Amendment’s jury trial guarantee limits the
judiciary’s power to sentence criminal defendants. To
impose a sentence above a statutory maximum, a court may
not rely on any fact (other than a prior conviction) not found
by a jury or admitted by the defendant. See Apprendi v. New




    2
      The U.S. Sentencing Guidelines permit a sentencing reduction
“[b]ased on the defendant’s role in the offense.” U.S. Sentencing
Guidelines Manual § 3B1.2 (U.S. Sentencing Comm’n 2016)
[hereinafter U.S.S.G.].
8                  UNITED STATES V. JAUREGUI

Jersey, 530 U.S. 466, 490 (2000); United States v. Guerrero-
Jasso, 752 F.3d 1186, 1190 (9th Cir. 2014). 3

    Jauregui’s present challenge to his sentence was not
raised before the district court, so we review for plain error.
See United States v. Chavez, 611 F.3d 1006, 1009 (9th Cir.
2010) (per curiam); see also Fed. R. Crim. P. 52(b). Under
that standard, relief is warranted if (1) there was error, (2) the
error was plain, (3) the error affected substantial rights, and
(4) the error seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. United States
v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en banc).

    Federal drug crime statutes specify offenses covering all
“controlled substances,” not certain drug types or quantities.
The permissible sentencing ranges, however, vary based on
the drug type and quantity involved. See, e.g., 21 U.S.C.
§§ 841(b), 960(b); see also United States v. Buckland, 289
F.3d 558, 565–66 (9th Cir. 2002) (en banc). For purposes of
Apprendi, because drug type and quantity determine the
applicable statutory maximum, those factors must be found
by a jury or admitted by the defendant before the defendant
can be sentenced to more than the relevant maximum for the
generic crime. Buckland, 289 F.3d at 568.

    Here, the generic crime is 21 U.S.C. § 963, conspiracy to
import a controlled substance. The penalties for importation
and conspiracy to import are the same. Id. The penalties for
importing a controlled substance are set forth in 21 U.S.C.
§ 960(b), which lists the sentencing ranges for various drug
types and quantities. Jauregui’s indictment did not specify
the quantity of drugs, so the relevant statutory penalties

    3
      For this reason, the district court’s disbelief of Jauregui’s story at
sentencing is immaterial to our inquiry here, which pertains to the
permissible penalty range. See Apprendi, 530 U.S. at 490.
               UNITED STATES V. JAUREGUI                   9

turned only on drug type. For an unspecified amount of
methamphetamine, the applicable statutory maximum is
twenty years. Id. § 960(b)(3); see also United States v.
Thomas, 355 F.3d 1191, 1201 (9th Cir. 2004). For an
unspecified amount of marijuana, on the other hand, the
applicable statutory maximum is five years. See 21 U.S.C.
§§ 841(b)(1)(D), 960(b)(4). Where drug type and quantity
are not proven, the relevant statutory maximum is one year.
See id. §§ 841(b)(3), 960(b)(7); see also United States v.
Hunt, 656 F.3d 906, 916 (9th Cir. 2011).

    Applying § 960(b), the district court sentenced Jauregui
to seventy-one months of incarceration, less than the
statutory maximum for methamphetamine but more than the
statutory maximum for marijuana. Whether that sentence is
permissible turns on whether, in the course of pleading
guilty, Jauregui admitted to conspiring to import
methamphetamine.

                             A

    “In assessing the scope of the facts established beyond a
reasonable doubt by a guilty plea, we must look at what the
defendant actually agreed to—that is, what was actually
established beyond a reasonable doubt.” United States v.
Banuelos, 322 F.3d 700, 707 (9th Cir. 2003). Our analysis
thus depends on what facts Jauregui admitted when he
entered his guilty plea. When sentencing results from a
guilty plea, “[t]he government has the burden ‘at the plea
colloquy to seek an explicit admission of any unlawful
conduct which it seeks to attribute to the defendant’” at
sentencing. Thomas, 355 F.3d at 1199 (quoting United States
v. Cazares, 121 F.3d 1241, 1248 (9th Cir. 1997)).

    The government does not attempt to rely on Jauregui’s
indictment to establish his admission of conspiracy to import
10              UNITED STATES V. JAUREGUI

methamphetamine, for good reason. In the indictment, the
government alleged that Jauregui “did knowingly and
intentionally conspire with other persons known and
unknown . . . to import methamphetamine, a Schedule II
Controlled Substance, into the United States,” thereby
violating 21 U.S.C. §§ 952, 960, and 963 (emphasis added).
“A plea of guilty and the ensuing conviction comprehend all
of the factual and legal elements necessary to sustain a
binding, final judgment of guilt and a lawful sentence.”
United States v. Broce, 488 U.S. 563, 569 (1989) (emphasis
added). A guilty plea does not, however, inevitably
constitute an admission of all facts alleged in the indictment,
as “allegations not necessary to be proved for a
conviction . . . are not admitted by a plea.” Cazares, 121
F.3d at 1247. Applying this principle, our court held in
Thomas that a guilty plea for possession with intent to
distribute under 21 U.S.C. § 841(a)(1) was not an admission
of the drug quantity alleged in the indictment, “[a]s drug type
and quantity are not elements of the offense under § 841.”
355 F.3d at 1195–96.

    Here, Jauregui’s guilty plea surely constituted an
admission of the requisite elements to sustain his conviction
for the crime of conspiracy to import a controlled substance,
itself triggering a maximum sentence of one year. See 21
U.S.C. §§ 841(b)(3); 960(b)(7). But his plea did not, on its
own, establish an admission that the substance he conspired
to import was methamphetamine, a crime subject to a
twenty-year maximum sentence. See id. § 960(b)(3). Drug
type is not a necessary element of a possession offense under
21 U.S.C. § 841, see Thomas, 355 F.3d at 1195–96; we see
no reason why the same would not be true for an importation
offense under § 960. Because drug type is “not necessary to
be proved for a conviction,” Cazares, 121 F.3d at 1247,
Jauregui’s guilty plea did not constitute an admission that he
                   UNITED STATES V. JAUREGUI                          11

conspired to import the drug type alleged in the indictment—
that is, methamphetamine.

    The government instead relies solely on Jauregui’s
factual basis admissions during the plea colloquy. A review
of that colloquy establishes that Jauregui never admitted to
conspiring to import methamphetamine.

    Instead, he specifically asserted that he had agreed to
import only marijuana, not methamphetamine. In
accordance with this limited admission, Jauregui’s
consistent account, as the prosecution explained at the
sentencing hearing, was that he had, in fact, withdrawn from
the marijuana importation agreement before undertaking the
drive across the border and had no knowledge of the
methamphetamine found in his car until the FBI agents told
him of it.

    Jauregui did, however, admit during his plea colloquy
that “[h]e became a member of the conspiracy knowing of
its object to import a controlled substance and intending to
help accomplish that object” and also that “it was reasonably
foreseeable that the controlled substance may be
methamphetamine” (emphasis added). It is this “reasonably
foreseeable” statement that the government contends was
sufficient to support Jauregui’s sentence for conspiracy to
import methamphetamine. 4


    4
       At oral argument, the government argued for the first time
that Jauregui’s sentence could be sustained based on his attorney’s
statement that “the agreement was either for marijuana or
methamphetamine.” Oral Argument at 16:51, United States v. Jauregui,
No. 16-50429 (9th Cir. July 10, 2018), https://www.ca9.uscourts.gov/
media/view_video.php?pk_vid=0000013997. But the district court
immediately requested clarification of that statement. Jauregui’s attorney
12                UNITED STATES V. JAUREGUI

                                  B

    Our question, then, is whether Jauregui’s admission—
that “it was reasonably foreseeable that the controlled
substance may be methamphetamine”—was sufficient under
Apprendi to expose Jauregui to sentencing under the
statutory maximum         for conspiracy to        import
methamphetamine. The applicable test is provided by our
decision in Banuelos.

    Under Banuelos, two findings are necessary to hold a
defendant liable for conspiracy involving a particular drug
type or quantity. First, the district court must find “that the
conspiracy distributed a particular type and quantity of
drugs”—that is, the existence of a conspiracy involving the
particular drug type and quantity. Banuelos, 322 F.3d at 704.
And second, the district court must also make a
determination      about      the     defendant’s     personal
responsibility—“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).

   As to the second prong of Banuelos, Jauregui did not
admit that importing methamphetamine was within the
scope of his agreement with his coconspirators. But he did
admit that “it was reasonably foreseeable that the controlled
substance” he would transport “would be methamphetamine
under the Pinkerton case.” Under Banuelos, this admission
was sufficient to satisfy this prong and potentially to expose

explained that Jauregui “believed he was agreeing to import marijuana,
but it was reasonably foreseeable that the substance would be
methamphetamine under the Pinkerton case.” Thus, we do not
understand the statement that “the agreement was either for marijuana or
methamphetamine” to constitute an admission distinct from the one
discussed in the text.
                   UNITED STATES V. JAUREGUI                            13

Jauregui to liability for a federal drug conspiracy to import
that methamphetamine.

    Nothing Jauregui admitted during his plea colloquy,
however, even hints at Banuelos’s first prong—“that the
conspiracy distributed a particular type and quantity of
drugs.” Id. Jauregui never admitted that there was in fact a
conspiracy whose object was importing methamphetamine,
nor did he ever admit that the substance found in his vehicle
was, in fact, methamphetamine. 5

    To be sure, there was likely evidence available that might
have supported the conclusion that there was, in fact, a
methamphetamine conspiracy. This issue perhaps “could
easily have been avoided had the district court or the
prosecutor been more precise during the plea colloquy.”
Hunt, 656 F.3d at 916. But Apprendi prohibits a court from
relying on evidence that could support imposing a sentence
essential to determining the statutory maximum unless the
essential fact has been admitted or found beyond a
reasonable doubt. See 530 U.S. at 490. As Jauregui’s

    5
        We recognize that, owing to the ambiguity of the word
“conspiracy,” Banuelos’s statement that “the district court was required
to find . . . that the conspiracy distributed a particular type and quantity
of drugs,” 322 F.3d at 704 (emphasis added), could be interpreted to
mean that the district court was required to find that Jauregui’s
coconspirators actually “distributed a particular type and quantity of
drugs,” not that they agreed to do so, see Conspiracy, Merriam-Webster,
https://www.merriam-webster.com/dictionary/conspiracy (last visited
Jan. 17, 2019) (defining “conspiracy” as both “the act of conspiring
together” and “a group of conspirators”). Even under this alternative
interpretation, however, the first prong of Banuelos is not satisfied.
Jauregui never admitted that his coconspirators in fact distributed
methamphetamine, just that it was reasonably foreseeable that someone
might do so. Cf. 322 F.3d at 705 (“On the basis of Banuelos’ own
admission, the district court found beyond a reasonable doubt that the
conspiracy distributed more than 1000 kilograms of marijuana.”).
14              UNITED STATES V. JAUREGUI

admissions did not establish the existence of a conspiracy to
import methamphetamine, he could not properly be
sentenced for conspiracy to import methamphetamine.

    The government’s argument—that Jauregui may be held
liable for a conspiracy involving methamphetamine even
though he never admitted the existence of such a
conspiracy—would expand Banuelos, potentially holding a
defendant liable for all reasonably foreseeable objects of a
conspiracy even if those objects were never agreed upon by
any of the coconspirators. Given that “attempts to broaden
the already pervasive and wide-sweeping nets of conspiracy
prosecutions” are disfavored, Grunewald v. United States,
353 U.S. 391, 404 (1957), we decline to adopt the
government’s sweeping interpretation of Banuelos.

                              C

    In sum, Jauregui’s admission that “it was reasonably
foreseeable that the controlled substance may be
methamphetamine” did not permit the district court to
sentence him for conspiracy to import methamphetamine.
The district court therefore erred in imposing a sentence
exceeding the statutory maximum for conspiracy to import
marijuana.

                             III

    Although the district court erred, relief is not warranted
unless the error satisfies the plain error standard. We
conclude that, under plain error review, reversal is
warranted.

    First, the error was plain. As already discussed, under
Banuelos’s standard, it is clear that Jauregui never admitted
to any facts establishing that “the conspiracy distributed
                   UNITED STATES V. JAUREGUI                         15

[the] particular type and quantity of drugs”—that is,
methamphetamine, for which he was sentenced. 322 F.3d at
704.

    Second, this error resulted in a sentence eleven months
longer than the appropriate statutory maximum and so
affected Jauregui’s substantial rights. See United States v.
Anderson, 201 F.3d 1145, 1152 (9th Cir. 2000) (“An error
that results in a longer sentence undoubtedly affects
substantial rights.”). The evidence was certainly not
“overwhelming” with respect to whether Jauregui
participated in a methamphetamine conspiracy. See United
States v. Ornelas, 906 F.3d 1138, 1146 (9th Cir. 2018)
(holding that a defendant’s substantial rights were affected
by a “plain instructional error” where “the evidence was not
‘overwhelming’ as to the omitted element”). Jauregui did not
so admit, and again, in the plea context, the only relevant
evidence is what the defendant admitted, not what might
have well been established in a trial. 6 And contrary to the
dissent’s assertions, the record actually indicates that
Jauregui would not have admitted this fact, as he repeatedly
maintained—during his interrogation, plea colloquy, and
sentencing—that the object of the conspiracy he joined was
to import marijuana and that he withdrew from that
    6
        The dissent argues that the presentence investigation report’s
discussion of the methamphetamine found in Jauregui’s car strongly
suggests the existence of a methamphetamine conspiracy. Dissent Op. at
30. Although we have previously considered “undisputed evidence”
found in a presentence investigation report for purposes of plain error
analysis, United States v. Valensia, 299 F.3d 1068, 1076 (9th Cir. 2002),
the presentence report in this case is inapposite. Here, Jauregui
consistently maintained that he did not know that there were any drugs
in his car, let alone over six kilograms of methamphetamine. Moreover,
it is conceivable that there was no such conspiracy. For example, one
person, acting alone, may have conceived a scheme to put the
methamphetamine in Jauregui’s car. Alternatively, the conspirators
could have been mistaken as to the drug type placed in the car.
16              UNITED STATES V. JAUREGUI

conspiracy. The portions of Jauregui’s interrogation quoted
by the dissent discuss a conspiracy to import only marijuana,
not methamphetamine. Dissent Op. at 30–31.

    Third and finally, the error would seriously undermine
the fairness and integrity of the judicial proceedings.
Normally, “the possibility of additional jail time . . .
warrants serious consideration in a determination whether to
exercise discretion under Rule 52(b),” especially where the
district court plays a significant role in determining the
appropriate sentence. Rosales-Mireles v. United States, 138
S. Ct. 1897, 1907 (2018); see also id. at 1908 (“The risk of
unnecessary deprivation of liberty particularly undermines
the fairness, integrity, or public reputation of judicial
proceedings in the context of a plain Guidelines error
because of the role the district court plays in calculating the
range and the relative ease of correcting the error.”).

    Moreover, as already noted, the Supreme Court has
expressly admonished courts to “view with disfavor attempts
to broaden the already pervasive and wide-sweeping nets of
conspiracy prosecutions.” Grunewald, 353 U.S. at 404.
Conspiracy is frequently prosecuted, see 2 Wayne R.
LaFave, Substantive Criminal Law § 12.1(b) (3d ed. 2017),
and “prosecutors seem to have conspiracy on their word
processors as Count I; rare is the case omitting such a
charge,” United States v. Reynolds, 919 F.2d 435, 439 (7th
Cir. 1990). Yet, as noted above, the government’s position
here would extend—beyond the already-expansive Banuelos
standard—the scope of traditional conspiracy law.

    “The requirement that the government prove facts
supporting a greater sentence beyond a reasonable doubt, or
that the defendant admit such facts, . . . is not an irrelevant
technicality.” Hunt, 656 F.3d at 916. To the contrary, the
jury trial right, guaranteed by the Sixth Amendment,
                UNITED STATES V. JAUREGUI                  17

involves “constitutional protections of surpassing
importance.” Apprendi, 530 U.S. at 476. Under the
circumstances here, the district court’s fundamental error
warrants reversal.

                             IV

    The dissent contends that, in light of our conclusion that
Jauregui did not admit the drug type charged in his
indictment, the proper course of action is to vacate his
conviction altogether, as there would be insufficient factual
basis for his guilty plea. Dissent Op. at 33–34. Not so.
“Under the decisions in this circuit, a plea of guilty admits
the facts constituting the elements of the charge.” Cazares,
121 F.3d at 1246. Thus, there is no basis for us to conclude
that Jauregui’s guilty plea to conspiracy to import a
controlled substance lacked a factual basis. Moreover,
because Jauregui “challenged only his sentence, and not his
conviction,” we lack the power to vacate his conviction.
Banuelos, 322 F.3d at 706. Instead, “we are required to
remand the case with instructions to the district court to
resentence [him] ‘subject to the maximum sentence
supported by the facts found by the [fact-finder] beyond a
reasonable doubt.’” Id. (second alteration in original)
(quoting United States v. Nordby, 225 F.3d 1053, 1062 (9th
Cir. 2000)). We are not, as the dissent maintains,
“[s]wapping in a specific uncharged drug type,” Dissent Op.
at 26–27, but rather remanding to the district court to
sentence Jauregui in accordance with the limitation imposed
by the Sixth Amendment’s jury trial guarantee—that is,
based on the facts Jauregui admitted as part of his plea
colloquy.

    Because Jauregui did not admit the facts necessary to
establish his eligibility to be sentenced for conspiracy to
import methamphetamine under Banuelos, the district court
18              UNITED STATES V. JAUREGUI

plainly erred in imposing a sentence in excess of the
statutory maximum for conspiracy to import marijuana, the
only controlled substance admitted by Jauregui. We
therefore vacate Jauregui’s sentence and remand for
resentencing in accordance with this opinion.

       VACATED and REMANDED.



BERZON, Circuit Judge, concurring:

    I write separately to emphasize the confusion that United
States v. Banuelos, 322 F.3d 700 (9th Cir. 2003), has
wrought, both in our criminal law doctrine and in our case
law more generally, and to suggest that this court should
reconsider Banuelos en banc.

                              I

    For conviction of the crime of conspiracy, “two different
types of intent are generally required—the basic intent to
agree, which is necessary to establish the existence of the
conspiracy, and the more traditional intent to effectuate the
object of the conspiracy.” United States v. U.S. Gypsum Co.,
438 U.S. 422, 443 n.20 (1978). This latter intent—the intent
to achieve a particular objective—is sometimes referred to
as “specific intent.” 2 Wayne R. LaFave, Substantive
Criminal Law § 12.2(c)(2) (3d ed. 2017). Because this
specific intent is a predicate to liability for conspiracy,
“individuals who have together committed a certain crime
have not necessarily participated in a conspiracy to commit
that crime.” Id. One treatise provides an illustrative example:

       [A]ssume that two persons plan to destroy a
       building by detonating a bomb, though they
                UNITED STATES V. JAUREGUI                   19

       know and believe that there are inhabitants in
       the building who will be killed by the
       explosion. If they do destroy the building and
       persons are killed, they are guilty of murder,
       but this is because murder may be committed
       other than with an intent-to-kill mental state.
       Their plan constitutes a conspiracy to destroy
       the building, but not a conspiracy to kill the
       inhabitants, for they did not intend the latter
       result.

Id. (footnotes omitted).

    By contrast, under what is referred to as Pinkerton
liability, the law “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) (emphasis
added) (citing Pinkerton v. United States, 328 U.S. 640,
645–48 (1946)). Thus, in the building destruction illustration
above, a coconspirator who does not in fact detonate the
bomb can, under Pinkerton, be held liable for killing its
inhabitants, even though he would not be guilty of
conspiracy to do so. See 2 LaFave, supra, § 12.2(c)(2).

    The distinction between liability for the crime of
conspiracy and Pinkerton liability for substantive crimes in
furtherance of the conspiracy derives from two basic
principles of traditional conspiracy law—that “conspiracy is
a distinct offense from the completed object of the
conspiracy,” Garrett v. United States, 471 U.S. 773, 778
(1985), and that “the conspiracy to commit an offense and
the subsequent commission of that crime normally do not
merge into a single punishable act,” Iannelli v. United States,
420 U.S. 770, 777 (1975). But our precedents concerning
20                 UNITED STATES V. JAUREGUI

sentencing for conspiracy drug offenses under both the U.S.
Sentencing Guidelines and conspiracy statutes have
muddied these waters.

    United States v. Becerra, 992 F.2d 960 (9th Cir. 1993)
was an early case addressing sentencing for conspiracy drug
offenses. Becerra held that, under the then-applicable U.S.
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. Applying
this standard, Becerra reversed the sentence of a defendant
who had distributed only two of the twenty-five kilograms
of cocaine involved in the crime, concluding that there were
“no facts on which the court could have based a finding that
[he] knew about or could reasonably foresee the 25-kilogram
transaction.” Id. at 967.

    Becerra relied upon the 1991 Guidelines, 1 which
provided that relevant conduct in determining the Guidelines
range should include “all acts and omissions committed or
aided and abetted by the defendant, or for which the
defendant would be otherwise accountable.” U.S.
Sentencing Guidelines Manual § 1B1.3(a)(1) (U.S.
Sentencing Comm’n 1991) [hereinafter 1991 U.S.S.G.]
(emphasis added). The corresponding commentary
explained that, “[i]n the case of criminal activity undertaken
in concert with others, whether or not charged as a
conspiracy, the conduct for which the defendant ‘would be

     1
      Becerra cited two earlier cases discussing the 1991 Guidelines. See
United States v. Petty, 982 F.2d 1374, 1376 (9th Cir.), amended and
superseded, 992 F.2d 887 (9th Cir. 1993); United States v. Navarro, 979
F.2d 786, 788 (9th Cir. 1992); see also United States v. Torres, 869 F.3d
1089, 1096 n.8 (9th Cir. 2017) (“It appears that Becerra relied on the
1991 version of the Guidelines, which was in effect before the
Guidelines were amended in November 1992.”).
                   UNITED STATES V. JAUREGUI                          21

otherwise accountable’ also includes conduct of others in
furtherance of the execution of the jointly-undertaken
criminal activity that was reasonably foreseeable by the
defendant.” Id. § 1B1.3 cmt. 1 (emphasis added). Becerra’s
interpretation of the relevant Guideline was premised on this
commentary. See 992 F.2d at 966.

    The “reasonably foreseeable” language in the Guidelines
commentary states Pinkerton’s test for substantive crimes
committed by a conspiracy verbatim, adopting that test
regarding the “conduct of others” for purposes of the
Guidelines. Compare Pinkerton, 328 U.S. at 647–48, with
1991 U.S.S.G. § 1B1.3 cmt. 1. That adoption made sense, as
substantive crimes in furtherance of a conspiracy and
reasonably foreseeable to the defendant are, as the
Guidelines suggest, conduct “for which . . . the defendant
would be otherwise accountable,” and so are relevant
conduct for sentencing purposes. 1991 U.S.S.G
§ 1B1.3(a)(1).

   In a footnote, Becerra indicated that the standard
applying to sentencing “under the statutory mandatory
minimums” was no more expansive. 992 F.2d at 967 n.2. 2 In
so suggesting, Becerra did not mention the distinction
between the specific intent of members of a conspiracy
required for the conviction for the crime of conspiracy and a

     2
       This footnote was a response to the government’s argument “that
the language of 21 U.S.C. § 841(b) allows 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.” Becerra, 992
F.2d at 967 n.2. Section 841(b) imposes a minimum sentence for crimes
“involving” certain quantities of drugs for defendants, like the
defendants in Becerra, with a prior felony drug conviction. Id. (quoting
21 U.S.C. § 841(b)(1)(A)). Thus, the government’s argument—which
Becerra rejected—was that the statutory minimum applied even if the
defendant had no individual responsibility under the Guidelines. See id.
22              UNITED STATES V. JAUREGUI

Pinkerton-theory conviction for substantive crimes
foreseeably committed in furtherance of a conspiracy.
Becerra had no reason to be so precise, as the statutory
provision at issue—21 U.S.C.§ 841(b)—applies to both
conspiracy convictions and substantive crimes committed in
furtherance of a conspiracy.

     Banuelos, the next case concerning sentencing and drug
crime conspiracy, directly concerned the application of the
statutory penalty provisions to a conviction for drug
conspiracy. See 322 F.3d at 703. Banuelos took up Becerra’s
terse suggestion as to the equivalency between the
Guidelines’ related conduct provision and the statutory
penalty provision and held that, “to sentence [the defendant]
pursuant to . . . any penalty provision tied to a particular type
or quantity of drug” for a drug conspiracy, “the district court
[is] 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].” Banuelos, 322 F.3d at 704. Banuelos
specifically noted that “[t]his rule is well-settled as a matter
of sentencing under the Guidelines, but we have also applied
it to sentencing under the statute of offense.” Id. (citing
Becerra, 992 F.2d at 966–67, 967 n.2). In so concluding,
Banuelos erroneously imported the Guidelines standards for
determining related substantive conduct into the standards
for conviction for conspiracy under the federal drug statutes.

    Following these twists and turns, it appears that
Banuelos unwittingly imported the test for Pinkerton
liability for substantive crimes in furtherance of a conspiracy
into the determination of whether a defendant can be held
liable for the crime of conspiracy itself, thereby conflating
                   UNITED STATES V. JAUREGUI                            23

liability for the crime of conspiracy and for substantive
crimes committed by the conspiracy. 3

                                    II

    In doing so, Banuelos muddied an already-confusing
area of law. “Although the crime of conspiracy is
‘predominantly mental in composition,’ there has
nonetheless always existed considerable confusion and
uncertainty about precisely what mental state is required for
this crime.” 2 LaFave, § 12.2(c) (footnote omitted) (quoting
Albert J. Harno, Intent in Criminal Conspiracy, 89 U. Pa. L.
Rev. 624, 632 (1941)). It is telling that, were we dealing with
the traditional crime of conspiracy, our inquiry here would
be simpler.

   In the plea colloquy, Jauregui admitted that he agreed to
import marijuana and so intended to accomplish that result.
But Jauregui never acknowledged that he agreed with his
coconspirators to import methamphetamine. Thus, he never
admitted that he intended to achieve that result.



    3
       I am not the first to voice concern about Banuelos’s importation of
the Guidelines’ relevant conduct determination for substantive offenses
into the elements of the statutory crime of conspiracy. United States v.
Torres expressed discomfort with Banuelos’s reasoning but declined to
confront the issue, concluding that the defendants were not entitled to
relief under plain error review. 869 F.3d at 1106. The Torres majority’s
concerns regarding Banuelos were primarily directed at the
inconsistency between a new, conjunctive Guidelines standard and the
disjunctive Banuelos standard, not at the tension between Banuelos and
traditional conspiracy law noted here. See id. at 1108; see also U.S.S.G.
§ 1B1.3(a)(1)(B). Judge Ikuta’s concurrence more specifically criticized
tethering sentencing under the conspiracy statute to the Sentencing
Guidelines’ standard for relevant conduct. Id. at 1099 (Ikuta, J., specially
concurring).
24             UNITED STATES V. JAUREGUI

    That Jauregui admitted that “it was reasonably
foreseeable that the controlled substance may be
methamphetamine” would not, under traditional conspiracy
law, establish that he knowingly joined a conspiracy whose
object was importing methamphetamine. Although
Jauregui’s lack of awareness regarding his coconspirators’
involvement of methamphetamine may have been negligent,
“[o]ne cannot negligently enter into a conspiracy.” United
States v. Ganji, 880 F.3d 760, 776 (5th Cir. 2018). As the
building destruction illustration discussed above
demonstrates, coconspirators who plan to bomb a building
can reasonably foresee that people will die as a result of a
building’s destruction but not intend for that result. See 2
LaFave, supra, § 12.2(c)(2). Under those circumstances,
they could perhaps be liable for reckless murder, negligent
homicide, or felony murder. See id. But that reasonable
foreseeability alone does not give rise to liability for
conspiracy to commit a homicide.

    To be sure, under Pinkerton, Jauregui’s admission that
“it was reasonably foreseeable that the controlled substance
may be methamphetamine” could establish his liability for
the substantive crime of importation of methamphetamine—
if the government had in fact alleged and proven that
Jauregui’s coconspirators were guilty of importation of
methamphetamine and that the importation of
methamphetamine was in furtherance of the conspiracy. But
Pinkerton applies only to substantive offenses, not the
underlying crime of conspiracy. Here, the charge of
importation of methamphetamine was dismissed; the only
crime for which Jauregui was convicted is conspiracy to
import a controlled substance. And as to that conspiracy,
Jauregui never admitted the alleged objective—that is, the
importation of methamphetamine. The foreseeability of that
objective is not enough under ordinary conspiracy law to
                 UNITED STATES V. JAUREGUI                     25

establish the conspiracy’s actual objective, or Jauregui’s
knowledge of it.

     I also note that Banuelos appears to have departed from
our earlier case law. In United States v. Umagat, 998 F.2d
770 (9th Cir. 1993), a group of defendants convicted of
conspiracy to smuggle marijuana argued that there was
insufficient evidence to support their convictions. Id. at 771.
In considering their arguments, Umagat recognized that “a
defendant cannot be legally bound to a conspiracy unless his
understanding with co-conspirators ‘was of sufficient scope
to warrant the conclusion that he embraced the common
purpose of the conspiracy.’” Id. at 772–73 (quoting United
States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984)).
“Indicative of a defendant’s understanding are the degree of
his knowledge, actual or constructive, of the scope of the
overall conspiracy, and the extent to which his own benefits
depended on the success of the entire venture.” Id. at 773.
Applying this standard, Umagat reversed the convictions of
two of the defendants who played only a minor role in the
conspiracy, concluding that “[n]either the evidence adduced
at trial nor the scope of their own actions suggests either that
they possessed actual knowledge of the breadth of the
overall conspiracy, or that we may attribute such knowledge
to them.” Id.

    In setting forth its test for liability for a drug conspiracy,
Banuelos did not discuss Umagat or explain why traditional
principles of conspiracy would not apply. In Jauregui’s case,
there is no admission to support his participation in a drug
conspiracy whose object was so broad as to include both
marijuana and methamphetamine. That should have been the
end of the inquiry.
26                 UNITED STATES V. JAUREGUI

                                  III

    The government’s position in this case would seriously
aggravate the tension Banuelos has already created with
traditional conspiracy law. In the building destruction
illustration discussed above, for example, the government’s
position would hold all the conspirators liable for conspiracy
to commit murder—even though they never agreed to
murder anyone and also never in fact destroyed the
building—because murder was reasonably foreseeable to
them if the object of the conspiracy were carried out. Cf. 2
LaFave, supra, § 12.2(c)(2).

    Although the principal opinion reaches the correct result,
it should not have needed to thread its way through
Banuelos’s revamping of traditional conspiracy law to do so.
Banuelos should be revisited. 4



CASTEL, District Judge, dissenting:

     I respectfully dissent.

    I am of the view that there was no plain error in
sentencing Martin Jauregui for participation in a conspiracy
to import methamphetamine, and that his sentence and
judgment of conviction should be affirmed. But my
disagreement with the majority does not end here. On this
record I do not believe Jauregui can be sentenced lawfully
for the crime of conspiracy to import marijuana, a crime for
which he has been neither charged nor convicted. Swapping

     4
      As noted earlier, a panel of this court has already recognized that
Banuelos should be reconsidered, albeit for different reasons. See supra
note 3.
                  UNITED STATES V. JAUREGUI                         27

in a specific uncharged drug type—even at the request of a
defendant—is wholly unlike permitting a lawful sentence to
be imposed on a lesser-included quantity. If, as the majority
holds, the district court committed plain error in sentencing
Jauregui for conspiracy to import methamphetamine, I
would vacate the judgment and return the parties to the
position they were in at the outset of the plea proceeding
because the asserted error would have infected both the
sentence and the underlying guilty plea. 1

    I. There Was No Plain Error in Finding an Adequate
       Factual Basis for the Existence of a Conspiracy to
       Import Methamphetamine.

    I agree with the majority that under this Court’s
precedents, in order to sentence Jauregui for a
methamphetamine conspiracy, it was necessary for Jauregui
to admit (1) the existence of a conspiracy to import
methamphetamine; and (2) that he participated in that
conspiracy, either with knowledge that its unlawful object
was the importation of methamphetamine or that it was
reasonably foreseeable to him that importation of
methamphetamine was its unlawful object. United States v.
Banuelos, 322 F.3d 700, 704 (9th Cir. 2003). I also agree
with the majority that, at the plea colloquy, his admission of
the first prong of the Banuelos test was inadequate but I
disagree that this error, which was never raised in the district
court, satisfies plain-error review.

    There appears to be an odd disparity between the level of
proof which a judge is required to find before accepting a
guilty plea and that which the judge must find before

    1
      While Jauregui’s brief does not challenge his count of conviction,
his notice of appeal is from the judgment of conviction and not merely
the sentence.
28                 UNITED STATES V. JAUREGUI

imposing a sentence dependent on drug type or quantity. A
constitutionally valid plea proceeding is not the opportunity
to prove the defendant’s guilt beyond a reasonable doubt; it
waives the government’s requirement to do so. Florida v.
Nixon, 543 U.S. 175, 187 (2004). For a valid guilty plea to
a crime, a factual basis for the plea must be established at
any time “[b]efore entering judgment on a guilty plea . . . .”
Fed R. Crim. P. 11(b)(3). A defendant’s admission is one of
the “many different ways” that a factual basis is properly
established. United States v. Gaither, 245 F.3d 1064, 1068
(9th Cir. 2001). The district court “may rely on presentence
reports in determining the factual basis for a plea,
notwithstanding the fact that presentence reports commonly
include hearsay.” United States v. Reyna-Tapia, 328 F.3d
1114, 1120 n.5 (9th Cir. 2003) (internal citation omitted).
“There is no requirement of an express finding of a factual
basis during the plea colloquy . . . . Rather, it must be
established on the record that there is sufficient evidence to
support the conclusion that the defendant is guilty, and the
court must make the determination before entering
judgment.” In re Ellis, 356 F.3d 1198, 1205 (9th Cir. 2004)
(en banc) (quotation marks, internal citation and alteration
omitted); see also Advisory Committee Notes to 1974
Amendments to Fed. R. Crim. P. 11 (predecessor
subdivision f). 2

    But in the specific context of the adequacy of a finding
of drug quantity and type for the purposes of sentencing, this
Court has held that “[i]n assessing the scope of the facts
established beyond a reasonable doubt by a guilty plea, we
must look at what the defendant actually agreed to – that is,
what was actually established beyond a reasonable doubt.”

     2
      On its face, Fed. R. Crim. P. 11(b)(3) would apply, for example, to
a crime carrying a mandatory life term. 18 U.S.C. § 1111 (murder within
the territorial jurisdiction of the United States).
                UNITED STATES V. JAUREGUI                    29

United States v. Thomas, 355 F.3d 1191, 1199 (9th Cir.
2004) (quoting Banuelos, 322 F.3d at 707); accord United
States v. Hunt, 656 F.3d 906, 912 (9th Cir. 2011). This Court
appears to require an admission by defendant that meets a
beyond-a-reasonable-doubt standard.          Accepting this
Court’s precedent imposing a higher standard than Rule
11(b)(3) on statutory sentencing enhancement factors, I
agree that the allocution by Jauregui on the first prong of the
Banuelos test does not meet this high standard.

    I agree with the majority that the error here is subject to
plain-error review, but I differ with its conclusion upon such
review. As a starting point, plain-error review may
appropriately look at the presentence report and other
reliable sources of information before the district court.
United States v. Valensia, 299 F.3d 1068, 1076 (9th Cir.
2002) (presentence report considered in reaching the
conclusion that the failure to obtain an admission of drug
quantity was not plain error). The presentence report and the
translated and transcribed debriefing of Jauregui by border
agents were before the district court in the pre-judgment
sentencing proceeding.

    There was significant and uncontroverted evidence
before the district court that a conspiracy existed, it included
multiple participants in addition to Jauregui, and the
objective of these other participants, as demonstrated by
their actions, was to import into the United States
methamphetamine and not some other drug. Conspiracies,
their participants and their objectives may be proven by
circumstantial evidence. United States v. Mincoff, 574 F.3d
1186, 1192 (9th Cir. 2009). “[T]he nature of a conspiracy is
such that it can rarely be proved in any other way.” United
States v. Perez, 491 F.2d 167, 171 (9th Cir. 1974).
30                 UNITED STATES V. JAUREGUI

    Methamphetamine was unquestionably imported by
Jauregui into the United States. 3 Strong circumstantial
evidence supports the conclusion that Victor, his recruiter
and handler, who had a car registered in Jauregui’s name and
gave the car to Jauregui knowing that he would drive it
across the border, had conspired with others (excluding
Jauregui) to import methamphetamine. Jauregui told the
agents that he used methamphetamine daily, and that on the
day of his arrest, he went to Victor’s residence to purchase
methamphetamine for personal use, at which time he
received permission to borrow the car in order to visit his
aunt in the United States. The firewall of the vehicle carried
eight packages of methamphetamine of 97.3% purity
totaling 6.485 kilograms. The sentencing court noted that
the quantity would support “60 to 65,000 individual hits of
methamphetamine . . . .” The street value of the
methamphetamine, using the border agent’s estimate of
$10,000 to $15,000 per pound, is between approximately
$142,000 and $214,000.

     Jauregui told the interviewing agents that “they said they
were going to tell me when, when they were going to load it,
when they were going to unload it,” “[t]hat they were going
to tell me where to go and that they were going to unload it,”
that “[t]hey had to get the car to unload it,” and that “they
were going to tell me what day they were going to load -,
they were going to load it, everything, everything,
everything.” (emphasis added.) Referring to Victor and the
car, Jauregui stated, “And why did he lend it to me? Because
they hadn’t taken anything out.”


     3
      I do not suggest that the actual importation of methamphetamine
dispenses with the need to prove a conspiracy or its object. But as
included in the totality of the evidence, it may be considered in deciding
whether a conspiracy to import methamphetamine existed.
                UNITED STATES V. JAUREGUI                   31

    Jauregui told the agents that Victor gave him an in-
person introduction to at least one other member of the
conspiracy: “[H]e took me over there with him and he’d told
me. . . what he was going to pay me when I was going to
cross and all that.” The agent then asked, “[T]he man Victor
introduced you to. . . He was going to pay you?” To which
Jauregui responded, “Supposedly.” Jauregui also made
reference to Victor having bosses: “[Q.] Do you think that
vehicle belonged to Victor? [A.] Uh hm, I think so. I thought
it belonged to his bosses but well, Victor was the one who’d
make the arrangements for me.” Earlier, Jauregui was asked
whether Victor was “a representative from a cartel, yes or
no?” He responded, “Well, yes.” Explaining why he was
fearful of declining to transport narcotics as instructed,
Jauregui told the agents, “I know those people are powerful.”
He described Victor as “just a servant,” and stated, “The
same way they used me, he’s also a servant.”

    The existence of other actors, besides Victor and
Jauregui, who were intent on moving drugs into the United
States proved the existence of a conspiracy to import drugs.
The totality of the quantity of the methamphetamine, its
street value in excess of six figures, its placement in the
firewall of the car, the need to plan ahead for its removal
from the car once it crossed into the United States and its
actual importation into the United States was circumstantial
evidence that proved that at least two persons other than
Jauregui agreed that the object of the conspiracy was to
import methamphetamine.

    There was no plain error in light of the record’s extensive
evidence that the importation of methamphetamine was the
object of a conspiracy with two or more members other than
Jauregui. United States v. Cotton, 535 U.S. 625, 632–33
(2002) (where the evidence of drug quantity was
32                 UNITED STATES V. JAUREGUI

“‘overwhelming’ and ‘essentially uncontroverted,’” the
failure to charge quantity in the indictment did not “seriously
affect the fairness, integrity, or public reputation of judicial
proceedings.”); Valensia, 299 F.3d at 1076–77 (failure to
establish drug quantity at plea colloquy was not plain error
in light of attorney statements and facts contained in
presentence report); United States v. Minore, 292 F.3d 1109,
1117–20 (9th Cir. 2002) (district court’s failure to advise
defendant of government’s burden as to drug quantity was
not plain error in light of the record’s “overwhelming
evidence” of quantity).

     Cotton teaches that on a plain-error review the question
whether the error affected substantial rights, as it did here by
enhancing the sentence, is distinct from whether the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings. 535 U.S. 632–33 (declining to reach
the third prong of inquiry on plain error review because the
fourth prong could not be met). The observation of a
unanimous Court in that case, speaking of a rejected plain-
error claim, comes to mind: “The real threat then to the
‘fairness, integrity, and public reputation of judicial
proceedings’ would be if respondents, despite the
overwhelming and uncontroverted evidence that they were
involved in a vast drug conspiracy, were to receive a
sentence prescribed for those committing less substantial
drug offenses because of an error that was never objected to
at trial.” 535 U.S. at 634 (quoting Johnson v. United States,
520 U.S. 461, 470 (1997)). 4


    4
       I respectfully submit that reaching and remanding on this
unpreserved error, which the government did not have the opportunity to
address head-on in the district court, impairs rather enhances “the public
reputation of judicial proceedings.” Cotton, 535 U.S. 632–33. I agree
                  UNITED STATES V. JAUREGUI                         33

    II. Jauregui Cannot Be Convicted or Sentenced for
        Conspiracy to Import Marijuana.

    Jauregui was never charged with and never entered a
plea of guilty to a conspiracy to import marijuana. At the
change-of-plea hearing, Jauregui responded unambiguously
and unequivocally that he was pleading “guilty” to
“conspiracy to import methamphetamine . . . .” The written
judgment against Jauregui records a conviction for a single
count of “Conspiracy to Import Methamphetamine.” I
submit that he cannot be sentenced for a conspiracy to import
some other drug as long as his guilty plea and conviction for
conspiracy to import methamphetamine stands.

    There is no disagreement that a person cannot be
sentenced for a particular drug type unless proven beyond a
reasonable doubt at trial or based on a valid admission of
type. United States v. Buckland, 289 F.3d 558, 568 (9th Cir.
2002) (en banc); Banuelos, 322 F.3d at 702. But I find no
support for the proposition that a different, specific drug may
be substituted for the purposes of conviction or sentencing.

    Drug quantity, which is not an issue on this appeal, is
different than drug type. If the quantity is not proven or
encompassed within a plea, then the defendant lawfully may
be sentenced for the lowest proven quantity of that drug.
See, e.g., Thomas, 355 F.3d at 1202. But an indictment for
a specific quantity of a particular drug necessarily subsumes
lesser quantities of that drug. That is an inherent
characteristic of drug quantity that does not exist for drug
type. This physical-world principle of lesser-included
quantities does not apply to drugs of a single, specific type.

with the majority that “To be sure, there was likely evidence available
that might have supported the conclusion that there was, in fact, a
methamphetamine conspiracy.”
34              UNITED STATES V. JAUREGUI

Marijuana is not subsumed within methamphetamine. True,
this Court has endorsed “resentencing within the lower
statutory sentencing range supported by a generic
conviction.” United States v. Vera, 770 F.3d 1232, 1250 (9th
Cir. 2014); see also Hunt, 656 F.3d at 909–11. But that is
not what the majority proposes here. A conviction for
conspiracy to import some controlled substance would result
in a maximum sentence of one year. 21 U.S.C. §§ 841(b)(3),
960(b)(7). A conspiracy to import marijuana carries a
maximum sentence of five years.                   21 U.S.C.
§§ 841(b)(1)(D), 960(b)(4). I find no holding of this Court
that a defendant who has been indicted for one drug type may
have his plea reconstrued at his request into a plea of guilty
to some other specific drug not charged in the indictment and
to which no plea of guilty was entered.

    I would affirm the judgment. But if I agreed with the
majority that on plain-error review there was not an adequate
factual basis for a sentence for the crime of conspiracy to
import methamphetamine, the error would infect both the
sentence and the count of conviction. When a plea of guilty
is entered without an adequate factual basis, the proper
remedy is to vacate judgment and remand for further
proceedings, and not just resentencing. See, e.g., United
States v. Monzon, 429 F.3d 1268, 1273–74 (9th Cir. 2005).
It would be beyond anomalous to conclude that there was a
valid basis for a guilty plea to conspiracy to import
methamphetamine but not for the sentence for that crime.

    In my view, in the event of a remand, the government
and Jauregui should be free to proceed to trial on both counts
of the indictment: conspiracy to import methamphetamine
and the substantive crime of importation. If Jauregui wishes
to plead guilty to participation in a marijuana conspiracy and
the government wishes to accept that plea in satisfaction of
               UNITED STATES V. JAUREGUI                  35

all charges, it is a simple matter for Jauregui to waive
indictment and enter a guilty plea to an information charging
such a conspiracy. The district court could then dismiss the
open counts of the indictment at sentencing.
