                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,                 No. 11-50346
            Plaintiff-Appellee,
                                           D.C. No.
               v.                     3:09-cr-04023-JM-2

MICHAEL RAY RAMIREZ,
         Defendant-Appellant.               OPINION


     Appeal from the United States District Court
         for the Southern District of California
   Jeffrey T. Miller, Senior District Judge, Presiding

                Argued and Submitted
        January 9, 2013—Pasadena, California

                    Filed April 29, 2013

  Before: Alex Kozinski, Chief Judge, M. Margaret
  McKeown, and Milan D. Smith, Jr., Circuit Judges.

           Opinion by Chief Judge Kozinski
2                  UNITED STATES V . RAMIREZ

                           SUMMARY*


                           Criminal Law

    The panel vacated a conspiracy conviction, affirmed
convictions for distribution and possession with intent to
distribute methamphetamine, and remanded in a case in
which the district court instructed the jury not to speculate as
to why the government did not call as a witness a go-between
in the defendant’s drug sales to an undercover agent.

    The panel held that the district court did not abuse its
discretion by failing to deliver a “missing witness” instruction
informing the jury that it could conclude that the government
did not call the go-between as a witness because his
testimony would have hurt the government case.

    The panel held that the district court did err by sua sponte
instructing the jury not to “speculate” about the reasons for
the go-between’s absence as a witness. The panel wrote that
by labeling the inference about the reasons for the go-
between’s absence as “speculation” and instructing the jury
not to credit it, the judge put off-limits a legitimate inference
that could have been helpful to the defense. The panel held
that the error was harmless with regards to the charges of
distribution and possession with intent to distribute.

   The panel held that there was insufficient evidence to
support the conspiracy charge because there was no evidence

  *
    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 . RAMIREZ                    3

of an agreement between the defendant and someone else to
distribute meth.

    The panel rejected the defendant’s contention under
United States v. Buckland, 289 F.3d 558 (9th Cir. 2002), that
the district court shouldn’t have imposed a sentencing
enhancement under 21 U.S.C. § 841(b) because the
indictment didn’t allege, and the jury didn’t find beyond a
reasonable doubt, that he had a prior drug felony. The panel
wrote that nothing in Buckland, which dealt only with the
“material fact[s]” of drug type and quantity, suggests that its
construction of section 841(b) applies to the fact of a prior
conviction.


                         COUNSEL

Devin Burstein (argued), Federal Defenders of San Diego,
Inc., San Diego, California, for Defendant-Appellant.

Fred Sheppard (argued), Assistant United States Attorney,
Laura E. Duffy, United States Attorney and Bruce R.
Castetter, Assistant United States Attorney, Chief, Appellate
Section, Criminal Division, Office of the United States
Attorney for the Southern District of California, San Diego,
California, for Plaintiff-Appellee.
4               UNITED STATES V . RAMIREZ

                         OPINION

KOZINSKI, Chief Judge:

    When may a judge instruct jurors not to speculate?

I. BACKGROUND

    Michael Ramirez and his associate Andres Bejaran were
the unwitting stars of a government sting. Four times in one
month, an undercover agent purchased escalating amounts of
meth from Ramirez, using Bejaran as a go-between. The
buys followed a pattern: Bejaran directed the undercover to
drive him to an inconspicuous location, took the money from
the undercover, walked the cash over to Ramirez (who was
waiting either in a nearby car or in a restaurant), exchanged
it for meth and returned to the undercover. Ramirez and
Bejaran were arrested during the fourth transaction.

    Bejaran copped a plea and agreed to testify for the
government, but the United States chose to present his
statements to the jury using the undercover’s testimony and
audio recordings. Ultimately, Bejaran did not take the stand,
although the defense established that he had been arrested and
pled guilty. That Bejaran had agreed to testify for the
government was never revealed to the jury, although the
parties discussed the issue both with District Judge
Moskowitz, who handled pre-trial motions, and with District
Judge Miller, who presided at trial.

    Before closing argument, Ramirez asked the judge to
deliver a “missing witness” instruction informing the jury that
it could “conclude that the government did not call Bejeran
                UNITED STATES V . RAMIREZ                   5

[sic] as a witness because his testimony would have hurt the
government case.” The district court refused.

    Ramirez’s lawyer brought up Bejaran’s absence several
times during summation. The government’s lack of evidence
against him, Ramirez told the jury, was compounded by the
fact that Bejaran hadn’t testified—Bejaran “could have filled
in the holes for you, . . . could have told you what was going
on.” After Ramirez’s closing statement, the judge addressed
the jury as follows:

       [W]ith respect to Mr. Bejaran, you may
       consider that Bejaran was not called as a
       witness by the government. However, there is
       no evidence before you as to why Bejaran was
       not called, and you should not speculate as to
       any reason why Bejaran was not called.

   The jury convicted Ramirez of distribution, possession
with intent to distribute and conspiracy to distribute meth.

II. DISCUSSION

   A. The Missing Witness Instruction

    A missing witness instruction is appropriate if two
requirements are met: (1) “[t]he party seeking the instruction
must show that the witness is peculiarly within the power of
the other party” and (2) “under the circumstances, an
inference of unfavorable testimony [against the non-moving
party] from an absent witness is a natural and reasonable
one.” United States v. Leal-Del Carmen, 697 F.3d 964,
974–75 (9th Cir. 2012) (internal quotation marks omitted).
6               UNITED STATES V . RAMIREZ

The district judge here didn’t abuse his discretion by failing
to give this instruction. See United States v. Bautista,
509 F.2d 675, 678 (9th Cir. 1975); see also United States v.
Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).

    While the judge didn’t articulate the two-part test
described above, his comments make it clear that he
identified and applied the correct rule. The judge did say that
he wasn’t “inclined” to give the instruction unless the defense
could identify Ninth Circuit caselaw requiring him to do so,
but this merely indicated the judge would be willing to
reconsider if shown authority that he lacked discretion to
refuse. There’s no error in keeping an open mind.

    Nor can we say that the judge’s decision was illogical.
See Hinkson, 585 F.3d at 1262. Even if Bejaran was
peculiarly within the government’s control, it’s still not a
“natural and reasonable” inference that Bejaran would have
testified against the government. Ramirez argues that,
because Bejaran was “the single best witness” against him,
the government would have called Bejaran if it thought he
would testify favorably. But a party may choose not to
present an available favorable witness for a variety of
reasons. The government here, in fact, seems to have had a
good reason for not calling Bejaran: Between the time he
agreed to testify and the time of the trial, he was jumped by
two inmates and hospitalized with permanent brain damage.
The judge could reasonably have concluded that the
government chose not to call Bejaran because it feared that
his effectiveness as a witness was compromised by the attack.
                UNITED STATES V . RAMIREZ                    7

   B. The Sua Sponte Instruction

    But the district judge didn’t merely refuse to give an
instruction favorable to the defense. Without being asked by
the government, he effectively instructed the jury not to fall
for defense counsel’s argument that the government didn’t
put Bejaran on the stand because he would have testified in
a manner favorable to the defense.

     The government urges us to review this instruction for
plain error because Ramirez failed to object. See Fed. R.
Crim. P. 30(d). But Ramirez’s lawyer had no opportunity to
object beforehand because the district judge did not consult
with counsel about what he was going to say prior to giving
the instruction. The judge did mention more than once that
he was contemplating an instruction of some sort on the
missing witness issue, but he did not commit to giving such
an instruction or disclose its content. Defense counsel thus
had nothing to object to. The question, then, is whether
Ramirez’s attorney should have objected after the judge gave
the instruction and risked calling the jury’s special attention
to it.

    Under these circumstances, we conclude defense counsel
wasn’t required to object. By his earlier request for a missing
witness instruction, Ramirez “made his point clear” that
Bejaran’s absence should be counted against the government.
See United States v. Castagana, 604 F.3d 1160, 1163 n.2 (9th
Cir. 2010). “There was no doubt of his continuing position”
that Bejaran’s absence should be noted and no need for
Ramirez to make “a futile formal objection” to the sua sponte
instruction. Id. (internal quotation marks omitted). We
8               UNITED STATES V . RAMIREZ

therefore review de novo. See United States v. Verduzco,
373 F.3d 1022, 1030 n.3 (9th Cir. 2004).

    We have held that “[w]hen the government can call a key
percipient witness, but relies instead on out-of-court
statements,” it’s “permissible” for the jury to infer that the
witness’s testimony would have been “unfavorable to the
prosecution.” United States v. Kojayan, 8 F.3d 1315, 1317
(9th Cir. 1993) (internal quotation marks omitted); cf. United
States v. Stever, 603 F.3d 747, 754 (9th Cir. 2010). Juries
have “broad discretion in deciding what inferences to draw
from the evidence presented at trial.” See Coleman v.
Johnson, 132 S. Ct. 2060, 2064 (2012) (per curiam). “It is
the jury, not the court, which . . . weighs the contradictory
evidence and inferences, . . . and draws the ultimate
conclusion as to the facts. The very essence of its function is
to select from among conflicting inferences and conclusions
that which it considers most reasonable.” Tennant v. Peoria
& Pekin Union Ry. Co., 321 U.S. 29, 35 (1944).

    The judge here instructed the jury not to “speculate”
about the reasons for Bejaran’s absence. The term
“speculate” has a vaguely pejorative cast; when judges use it,
they generally refer to inferences that are irrational or
impermissible. For instance, we occasionally reverse
Immigration Judges’ findings by saying that they are based
on “speculation and conjecture.” See, e.g., Joseph v. Holder,
600 F.3d 1235, 1247 (9th Cir. 2010); Chawla v. Holder,
599 F.3d 998, 1009 (9th Cir. 2010). And, indeed, it would
have been perfectly proper for the district judge to warn the
jury not to draw impermissible inferences by telling the jurors
not to speculate, for example, as to why the judge had
                 UNITED STATES V . RAMIREZ                      9

stricken certain testimony or what a witness might have said
if he’d been allowed to answer an objectionable question.

    But jurors are entitled—nay, required—to draw
inferences on matters that are not off-limits to them. Without
inferences, the government could seldom prove up its case, as
it must rely on the common sense and life experience of the
jurors to fill in matters that are not provable by direct
evidence, such as intent, premeditation or the existence of a
conspiracy.

    As explained above, it would have been entirely
reasonable and permissible for the jury to infer that Bejaran
was within the control of the government, and that the
government would have put him on the stand if it believed his
testimony would be helpful to it. From that, it would have
been possible for the jurors to infer that his testimony would
have helped the defendant. This was a relatively weak
inference, but decidedly helpful to the defense, as it would
have cast doubt on whether the handful of Bejaran’s hearsay
statements introduced at trial told the whole story.

    The district court may have known or suspected that this
was the wrong inference, and perhaps decided to “help” the
jurors by keeping them from making a mistake. But it is the
government’s job, not the court’s, to make sure the jury
doesn’t draw incorrect inferences. Doing so here would have
complicated the prosecution’s case somewhat, and perhaps
that is why the government chose not to say anything about
the reasons for Bejaran’s absence. But that was the
government’s choice to make. It was not the court’s function,
after both sides had rested, to give an instruction that filled in
the evidentiary gap the court believed the government had left
10               UNITED STATES V . RAMIREZ

in its case. By labeling the inference about the reasons for
Bejaran’s absence as “speculation” and instructing the jury
not to credit it, the judge put off-limits a legitimate inference
that could have been helpful to the defense.

    A judge may not preclude the jury from drawing any
inferences that it may legitimately draw. The sua sponte
instruction, therefore, was error. By instructing the jurors to
disregard any uncertainty about why the prosecution didn’t
call a witness—who might have been the key witness—the
court improperly inserted itself into the jury room and
interfered with the jury’s role as a factfinder.

    This incident demonstrates why it’s a good practice for
the court to discuss the language of a proposed instruction
with the parties before giving it. Had the court done so here,
defense counsel may have pointed out the error and
convinced the judge not to deliver the instruction, thus
avoiding an issue on appeal.

    However, the court’s sua sponte instruction didn’t rise to
the level of constitutional error, which would have required
us to reverse Ramirez’s convictions unless the error was
“harmless beyond a reasonable doubt.” See Leal-Del
Carmen, 697 F.3d at 975. To be sure, the Constitution
protects a criminal defendant’s right to argue a point that goes
to the heart of his defense. See, e.g., Stever, 603 F.3d at
755–57; United States v. Kellington, 217 F.3d 1084,
1099–1101 (9th Cir. 2000). But discussing Bejaran’s absence
was merely a small part of the defense’s broader strategy of
casting doubt on the government’s evidence wherever and
whenever possible.
                UNITED STATES V . RAMIREZ                   11

     In the absence of constitutional error, we may reverse
Ramirez’s conviction only if we “cannot say, with fair
assurance, . . . that the judgment was not substantially swayed
by the error.” United States v. Hernandez, 476 F.3d 791, 801
(9th Cir. 2007) (internal quotation marks omitted). Under
this standard, the sua sponte instruction was harmless with
regards to the charges of distribution and possession with
intent to distribute. Even if the jury had drawn a negative
inference about Bejaran’s absence, the government presented
substantial evidence—including testimony from the
undercover and other law enforcement officers—indicating
that Ramirez was a drug dealer. There was simply no
plausible alternative explanation for Ramirez’s presence at
the precise time and place of several drug transactions where
the undercover witnessed Bejaran walk up to Ramirez’s car
with a wad of cash and return minutes later with meth, or for
the various bank and phone records linking Ramirez to the
transactions. And when the police arrested him, Ramirez was
sitting in his car with Bejaran, $5200 and four baggies of
meth. We needn’t decide whether the sua sponte instruction
had a prejudicial effect on the conspiracy charge because we
reverse that conviction on other grounds.

   C. Sufficiency of the Evidence on the Conspiracy
      Charge

    To make out a case for conspiracy, the government had to
show that there was an agreement between Ramirez and
someone else to distribute meth. See United States v.
Lennick, 18 F.3d 814, 818 (9th Cir. 1994). Even viewing the
evidence in the light most favorable to the government, there
was no such agreement here. See United States v. Dann,
652 F.3d 1160, 1168 (9th Cir. 2011).
12              UNITED STATES V . RAMIREZ

    To prove conspiracy, the government had to show more
than that Ramirez sold drugs to someone else knowing that
the buyer would later sell to others. It had to show that
Ramirez had an agreement with a buyer pursuant to which the
buyer would “further distribute the drugs.” Lennick, 18 F.3d
at 819. “In the end, what we are looking for is evidence of a
prolonged and actively pursued course of sales coupled with
the seller’s knowledge of and a shared stake in the buyer’s
illegal venture.” United States v. Thomas, 284 F.3d 746, 752
(7th Cir. 2002) (internal quotation marks omitted); cf. United
States v. Mincoff, 574 F.3d 1186, 1194 (9th Cir. 2009).

    As in Lennick and Thomas, the government presented
ample proof that the defendant possessed and sold drugs. See
Lennick, 18 F.3d at 818; Thomas, 284 F.3d at 751. After all,
three of the four meth sales the government engineered took
place with Ramirez and the undercover in sight of each other.
However, “[t]he sale of large quantities of controlled
substances, without more, cannot sustain a conspiracy
conviction.” Lennick, 18 F.3d at 819 n.5 (internal quotation
marks and alterations omitted). And the government
presented no evidence indicating that Ramirez had any kind
of involvement in Bejaran’s drug sales. Cf. United States v.
Webster, 623 F.3d 901, 907 (9th Cir. 2010).

     Arguing in the alternative, the government advances an
even weaker conspiracy theory: that Ramirez was working for
a mysterious “Mark Johnson” who supplied Ramirez with
meth on credit. The government didn’t pursue this theory at
trial and consequently can identify only one place in the
record where it mentioned Johnson’s name—when the
prosecutor moved bank records with Johnson’s name on them
into evidence without comment. Tellingly, Johnson wasn’t
                UNITED STATES V . RAMIREZ                   13

named in the indictment, and when the government
summarized its conspiracy case in its closing statement, it
discussed only the Ramirez-Bejaran relationship. As the
district judge summarized, “there is no evidence concerning
this individual Mark Johnson other than a name in some
records.”

   D. Sentencing Enhancement

    Thanks to a prior felony drug conviction for PCP
possession, Ramirez received an automatic twenty-year
mandatory minimum sentence on each of the counts that
involved the possession or distribution of fifty grams or more
of meth. See 21 U.S.C. § 841(b). Relying on United States
v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002) (en banc),
Ramirez contends that the judge shouldn’t have imposed a
sentencing enhancement under 21 U.S.C. § 841(b) because
the indictment didn’t allege, and the jury didn’t find beyond
a reasonable doubt, that he had a prior drug felony. In
Buckland, we applied the canon of constitutional avoidance
to interpret section 841(b) so that a “material fact” that
increases “the maximum sentence for a conviction” must be
treated like an element of the crime rather than as a fact that
can be determined by a judge based on a preponderance of
the evidence. Buckland, 289 F.3d at 564, 568; cf. Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000). Buckland dealt
only with the “material fact[s]” of drug type and quantity.
See 289 F.3d at 568. Ramirez argues that we must apply the
Buckland rule to his case because section 841(b) doesn’t
indicate that the fact of a prior conviction should be treated
differently from facts related to drug type and quantity.
14              UNITED STATES V . RAMIREZ

    Nothing in Buckland suggests that its construction of
section 841(b) applies to the fact of a prior conviction. It
would be odd if it did, because we construed the statute to
avoid a clash with Apprendi. See Buckland, 289 F.3d at 564,
568. Apprendi expressly excludes “the fact of a prior
conviction” from its rule requiring that a fact that increases
the maximum penalty of a crime be sent to a jury and proved
beyond a reasonable doubt. See 530 U.S. at 490. And
Ramirez doesn’t identify any caselaw that directly supports
his reading of section 841(b). Indeed, in at least one post-
Buckland case, we’ve held that the judge didn’t err by
applying an enhancement under section 841(b) for a prior
drug conviction without a jury finding. See United States v.
Hollis, 490 F.3d 1149, 1157–58 (9th Cir. 2007), abrogated on
other grounds by DePierre v. United States, 131 S. Ct. 2225
(2011); see also United States v. Mills, 280 F.3d 915, 923
(9th Cir. 2002).

                         *    *   *

    Ramirez’s conspiracy conviction is VACATED and his
case is REMANDED to the district court to grant a judgment
of acquittal on that count alone and to conform the sentence
accordingly. The remainder of Ramirez’s convictions and
sentence are AFFIRMED.
