Looks like this issue is heading for en banc review. But for now, the panel found 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 plain error, even though the jury was not required to find that the drug quantities related to violations were also part of a jointly undertaken criminal activity.
There is a lot of back and forth between the majority and special concurrence on this issue. If you have a drug conspiracy case going to trial, read this opinion carefully so you can request proper instructions.
In the 851 enhancement context, the panel also concluded that, even though the defendants' state-court convictions overlapped temporally with their convictions in this case, the state convictions could be considered “prior” convictions that trigger sentencing enhancements under § 841(b).
