                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 05 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30268

              Plaintiff - Appellee,              D.C. No. 3:08-cr-00119-JKS-1

  v.
                                                 MEMORANDUM *
JUAN MANUEL MENDIOLA,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Alaska
                James K. Singleton, Senior District Judge, Presiding

                       Argued and Submitted May 22, 2013
                               Anchorage, Alaska

Before: TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.

       Juan Mendiola was convicted of drug trafficking conspiracy, drug

possession, and related firearms offenses, including possession of machine guns in

furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). He appeals his

convictions on two firearm possession counts, and the two resulting mandatory

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
minimum sentences he received. We have jurisdiction under 28 U.S.C. § 1291 and

18 U.S.C. § 3742(a), and we affirm.

      The existence of a prior conviction is a sentencing factor, rather than an

element of the crime, and need not be charged in the indictment or found by the

jury—even if it increases the sentence that otherwise would be available for the

charged offense. Almendarez-Torres v. United States, 523 U.S. 224, 235, 241

(1998). Thus, the district court did not err when it sentenced Mendiola to 25 years

for his second conviction under 18 U.S.C. § 924(c) even though the fact of the

prior conviction was not charged in the indictment or found by the jury. Nor did

the district court err by imposing the enhanced penalty for a second or subsequent

§ 924(c) conviction where both convictions were obtained in the same prosecution.

See Deal v. United States, 508 U.S. 129, 135 (1993); United States v. Neal, 976

F.2d 601, 602 (9th Cir. 1992).

      Substantial mandatory minimum sentences for violations of § 924(c) where

the convictions are based on a Pinkerton v. United States, 328 U.S. 640 (1946),

theory of vicarious liability do not amount to cruel and unusual punishment in

violation of the Eighth Amendment. See United States v. Hungerford, 465 F.3d

1113, 1118 (9th 2006). Mendiola’s 30-year sentence for possessing a machine gun

in furtherance of drug trafficking is therefore not cruel and unusual, even if the


                                           2
conviction was based entirely on a Pinkerton theory of liability. Furthermore,

sufficient direct evidence was presented at trial to support Mendiola’s conviction

for possession of a machine gun.

      AFFIRMED.




                                          3
                                                                           FILED
United States v. Mendiola, No. 10-30268                                     JUN 05 2013

                                                                        MOLLY C. DWYER, CLERK
TASHIMA, Circuit Judge, concurring in the judgment:                      U .S. C O U R T OF APPE ALS




      Defendant Juan Mendiola was convicted of a drug trafficking conspiracy

and related firearms offenses. For these crimes, primarily because of the way in

which federal firearms sentences are structured and the statutory minimum

sentences they impose, defendant was sentenced to a 65-year term of

imprisonment. At sentencing, the experienced District Judge noted that if he “had

greater discretion, [he] would impose a sentence far less than 65 years.” In his

considered opinion, “a sentence of 65 years [was not] necessary to address the

sentencing goals of [18 U.S.C. §] 3553.” I agree. A sentence of 65 years’

imprisonment, for these crimes, on this record, is way beyond the pale of an

acceptable fair, just, and reasonable sentence in a civilized, humane society. See

United States v. Hungerford, 465 F.3d 1113, 1118-22 (9th Cir. 2006 (Reinhardt, J.,

concurring in the judgment). Further, were this sentence subject to review for

substantive reasonableness, absent the consecutive and increasingly harsh statutory

minima, I doubt that it would survive unscathed. See United States v. Ressam, 679

F.3d 1069, 1086-88 (9th Cir. 2012) (en banc).

      Nonetheless, I am compelled to concur in the judgment because the sentence

and the majority’s affirmance of that sentence are solidly grounded in the statutory

mandate to impose consecutive minimum sentences, as interpreted by the Supreme
Court and this Circuit. I thus concur in the judgment.




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