PAGE 1 – MEMORANDUM OF LAW IN SUPPORT OF REQUESTED JURY INSTRUCTIONS RELATED TO 

COUNTS ONE AND TWO—CONSPIRACY

United States v. Fabian SANDOVAL-RAMOS,

USDC Oregon Case No. 3:14-CR-267-BR-1

Benjamin T. Andersen

101 SW Madison St #9068

Portland OR 97207-9068

t. 503.222.2510 f. 503.546.0664

btandersen@btandersen.com

Attorney for Defendant 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

Fabian SANDOVAL-RAMOS,

Defendant.

Case No. 3:14-CR-267-BR-1

MEMORANDUM OF LAW IN 

SUPPORT OF REQUESTED JURY 

INSTRUCTIONS RELATED TO 

COUNTS ONE AND TWO—

CONSPIRACY

Count One of the indictment charges multiple defendants, including Fabian 

Sandoval-Ramos, with “Conspiracy to Distribute Heroin Resulting in Death.” Count Two 

charges Mr. Sandoval and others with “Conspiracy to Distribute Heroin” with the 

aggravating element alleging that the distribution involved more than a kilogram of a 

mixture or substance containing a detectable amount of heroin. Defendant’s requested 

jury instructions seek to instruct the jury that, in order to find Mr. Sandoval guilty of either 

of the conspiracies charged in Counts One and Two, the government must prove beyond 

a reasonable doubt that Mr. Sandoval entered into an agreement and had the intention to 

help commit the substantive offense.

Case 3:14-cr-00267-HZ Document 179 Filed 10/19/15 Page 1 of 7
PAGE 2 – MEMORANDUM OF LAW IN SUPPORT OF REQUESTED JURY INSTRUCTIONS RELATED TO 

COUNTS ONE AND TWO—CONSPIRACY

United States v. Fabian SANDOVAL-RAMOS,

USDC Oregon Case No. 3:14-CR-267-BR-1

The requested instructions are supported by Alleyne v. United States, 133 S.Ct. 

2151, 186 L.Ed.2d 314 (2013), and Burrage v. United States, 134 S. Ct. 881, 887 (2014),

and as further discussed below.

I. THE SUBSTANTIVE OFFENSE

Alleyne is among the multitude of shockwaves that have drastically reformed the 

criminal justice system since the landmark decision announced in Apprendi v. New 

Jersey, 530 US 466 (2000). Alleyne overruled two prior cases, Harris v. United States, 536 

US 545 (2002), and McMillan v. Pennsylvania, 477 US 79 (1986), both of which rested on 

a perceived distinction between elements of a crime and “sentencing factors.” Alleyne, 

133 S.Ct. at 2164 (Sotomayor, J., concurring, “I join the opinion of the Court, which 

persuasively explains why Harris and McMillan were wrongly decided.”). By overruling 

Harris and McMillan, Alleyne did away with any lingering distinction between “sentencing 

factors” that increased or imposed a mandatory minimum and “elements” of a crime and 

repeatedly makes clear that “a fact that increases a sentencing floor... forms an essential 

ingredient of the offense.” Id. at 2161. “[T]he core crime and the fact triggering the 

mandatory minimum sentence together constitute a new, aggravated crime[.]” Id.

Based directly on Alleyne and Apprendi, the Supreme Court in Burrage, discussing 

the exact substantive crime that is the alleged object of the conspiracy in Count One of 

the indictment against Mr. Sandoval, Distribution of Heroin Resulting in Death, concluded 

that:

[b]ecause the "death results" enhancement increased the minimum and 

maximum sentences to which Burrage was exposed, it is an element that must be 

submitted to the jury and found beyond a reasonable doubt. Thus, the crime 

Case 3:14-cr-00267-HZ Document 179 Filed 10/19/15 Page 2 of 7
PAGE 3 – MEMORANDUM OF LAW IN SUPPORT OF REQUESTED JURY INSTRUCTIONS RELATED TO 

COUNTS ONE AND TWO—CONSPIRACY

United States v. Fabian SANDOVAL-RAMOS,

USDC Oregon Case No. 3:14-CR-267-BR-1

charged in count 2 of Burrage's superseding indictment has two principal elements: 

(i) knowing or intentional distribution of heroin, §841(a)(1), 4 and (ii) death caused 

by ("resulting from") the use of that drug, §841(b)(1)(C).

Burrage, 134 S.Ct. at 887 (citations to Alleyne, and Apprendi omitted).

Post-Alleyne/Burrage, it is clear that the offense of Distribution of Heroin Resulting 

in Death is a distinct offense from Distribution of Heroin, and both distinct offenses have 

distinct penalties.

II. STATUTORY LANGUAGE AND CASELAW OF CONSPIRACY

Mr. Sandoval is charged under 21 USC §846, the drug conspiracy law:

Any person who attempts or conspires to commit any offense defined in this 

subchapter shall be subject to the same penalties as those prescribed for the 

offense, the commission of which was the object of the attempt or conspiracy.

21 USC § 846. Prior to Alleyne/Burrage, although both needed to be pleaded and proved 

to a jury, a “sentencing factor,” such as a resultant death or a weight amount, generally 

was viewed as somehow separate from the “offense.” A defendant could be accused of 

conspiring to Distribute Heroin, and, if a jury also found that death resulted from heroin 

actually delivered, a sentence equivalent to the substantive crime of Delivery of Heroin 

Resulting in Death, including the mandatory minimum, would have to be applied. This 

approach evidences a fundamental misunderstanding of conspiracy law, because it treats 

the conspiracy offense and the substantive offense as if they were the same offense. In 

fact, “the commission of the substantive offense and a conspiracy to commit it are 

separate and distinct offenses.” Pinkerton v. United States, 328 US 640, 643 (1946). “The 

agreement to do an unlawful act is even then distinct from the doing of the act.” Id at 

644. It is the agreement itself that is the “distinct evil.” Salinas v. United States, 522 US 

Case 3:14-cr-00267-HZ Document 179 Filed 10/19/15 Page 3 of 7
PAGE 4 – MEMORANDUM OF LAW IN SUPPORT OF REQUESTED JURY INSTRUCTIONS RELATED TO 

COUNTS ONE AND TWO—CONSPIRACY

United States v. Fabian SANDOVAL-RAMOS,

USDC Oregon Case No. 3:14-CR-267-BR-1

52, 65 (1997). That agreement “may exist and be punished whether or not the substantive 

crime ensues.” Id., see also United States v. Jimenez Recio, 537 U.S. 270, 274-75 (2003).

By way of illustration, for a conviction of the substantive offense of murder, in 

whatever degree, it is clear that a killing must have actually occurred. See, e.g., United 

States v. Free, 841 F.2d 321, 325 (9th Cir. 1988) (An “essential element[] of first-degree 

murder [is:] the act . . . of killing a human being”). That, of course, necessarily assumes 

that a human being dies. In a prosecution for Conspiracy to Commit Murder, however, a 

conviction could be had even if no murder occurred, or if no one died. See, e.g. Kleve v. 

Hill, 243 F.3d 1149, 1151 (9th Cir. 2001) (discussing a California conviction for 

conspiracy to commit second degree murder when there was no death). What matters is 

the agreement with the intent to kill. See, e.g., People v. Swain 12 Cal.4th 593, 603 

(1996) (the crime of conspiracy to commit murder requires a finding of unlawful intent to 

kill.).

If there is no intent to kill, there is no conspiracy to commit murder. Similarly, if 

there is no intent to have the heroin you intend to deliver result in the death of another, 

there is no Conspiracy to Deliver Heroin Resulting in Death. This is true because in both 

instances, a key element is missing.

18 USC §846, while prescribing the same penalties for a conspiracy to commit a 

particular drug offense as those for the particular substantive offense that was the goal of 

the conspiracy, does not alter the fact that the conspiracy is wholly separate from the 

substantive offense. Nor does it alter the fact, as discussed above, that a conspiracy 

requires the intent to commit the substantive offense, regardless of whether it is actually 

Case 3:14-cr-00267-HZ Document 179 Filed 10/19/15 Page 4 of 7
PAGE 5 – MEMORANDUM OF LAW IN SUPPORT OF REQUESTED JURY INSTRUCTIONS RELATED TO 

COUNTS ONE AND TWO—CONSPIRACY

United States v. Fabian SANDOVAL-RAMOS,

USDC Oregon Case No. 3:14-CR-267-BR-1

accomplished. “[A conspiracy] has ingredients, as well as implications, distinct from the 

completion of the unlawful project.” Pinkerton, 328 US at 644. The Pinkerton court goes 

on, quoting in florid detail:

For two or more to confederate and combine together to commit or cause to be 

committed a breach of the criminal laws is an offense of the gravest character, 

sometimes quite outweighing, in injury to the public, the mere commission of 

the contemplated crime. It involves deliberate plotting to subvert the laws, 

educating and preparing the conspirators for further and habitual criminal 

practices. And it is characterized by secrecy, rendering it difficult of detection, 

requiring more time for its discovery, and adding to the importance of 

punishing it when discovered.

Id. (citations omitted).

The essence of a conspiracy is “an agreement to commit an unlawful act.” Iannelli

v. United States, 420 US 770, 777 (1975); see United States v. Shabani, 513 US 10, 16 

(1994); Braverman v. United States, 317 US 49, 53 (1942).

Because a conspirator “must intend to further an endeavor which, if completed, 

would satisfy all of the elements of a substantive criminal offense,” Salinas, supra, in order 

to convict Mr. Sandoval of “Conspiracy to Distribute Heroin Resulting in Death,” the 

government must prove beyond a reasonable doubt that Mr. Sandoval agreed with at least 

one person with the intention not only to assist in the distribution of heroin, but also that 

death be caused by the use of the distributed heroin.

Whether a death actually occurred, for all practical purposes, is immaterial.

Case 3:14-cr-00267-HZ Document 179 Filed 10/19/15 Page 5 of 7
PAGE 6 – MEMORANDUM OF LAW IN SUPPORT OF REQUESTED JURY INSTRUCTIONS RELATED TO 

COUNTS ONE AND TWO—CONSPIRACY

United States v. Fabian SANDOVAL-RAMOS,

USDC Oregon Case No. 3:14-CR-267-BR-1

III. TO CONVICT MR. SANDOVAL OF COUNT ONE AS INDICTED, THE 

GOVERNMENT MUST PROVE THAT HE INTENDED TO CAUSE DEATH

For the reasons stated in this memorandum, in order to convict Mr. Sandoval of 

Count One of this indictment, the government must prove beyond a reasonable doubt 

that:

(1) Mr. Sandoval agreed with some other person to commit the offense of delivery 

of heroin resulting in death;

(2) He joined the conspiracy knowing that its purposes were

a. to distribute heroin, and

b. to have death result from the delivery of that heroin; and

(3) He intended to help accomplish those specific purposes.

IV. TO CONVICT MR. SANDOVAL OF COUNT TWO AS INDICTED, THE 

GOVERNMENT MUST PROVE THAT HE INTENDED TO DISTRIBUTE MORE THAN A 

KILOGRAM OF HEROIN

The discussion above focused on Count One. However, the same arguments 

pertain to Count Two. A conviction for the simple distribution of heroin carries a 

maximum sentence of 20 years. 21 USC §841(b)(1)(C). A conviction for the aggravated 

offense of distribution of more than a kilogram of heroin carries a minimum sentence of 

10 years and a maximum sentence of life imprisonment. 21 USC §841(b)(1)(a)(i). The 

additional allegation of distribution of more than a kilogram therefore “increases the 

punishment above what is otherwise legally prescribed.” See Alleyne 133 S.Ct at 2158. 

As such, the kilogram allegation “is by definition an element of the offense[.]” Id.

Case 3:14-cr-00267-HZ Document 179 Filed 10/19/15 Page 6 of 7
PAGE 7 – MEMORANDUM OF LAW IN SUPPORT OF REQUESTED JURY INSTRUCTIONS RELATED TO 

COUNTS ONE AND TWO—CONSPIRACY

United States v. Fabian SANDOVAL-RAMOS,

USDC Oregon Case No. 3:14-CR-267-BR-1

For the same reasons as stated above, in order to convict Mr. Sandoval of the 

conspiracy alleged in Count Two, the government must prove beyond a reasonable doubt 

that:

(1) Mr. Sandoval agreed with some other person to commit the offense of delivery 

of more than a kilogram of heroin;

(2) He joined the conspiracy knowing that its purpose was to distribute more than a 

kilogram of heroin; and

(3) He intended to help accomplish that specific purpose.

Respectfully submitted this 19th day of October, 2015.

/s/ (intended as original in electronic filings)

_______________________________________

Benjamin T. Andersen, OSB 06256

Attorney for Defendant

Case 3:14-cr-00267-HZ Document 179 Filed 10/19/15 Page 7 of 7