United States v. Benito Hernandez
322 F.3d 592
9th Cir.
2003
Check Treatment
Docket

*1 38; respond.” R.App. Fed. P. portunity America, Frazer, UNITED STATES of 78 F.3d 459-

see also Gabor Plaintiff-Appellee, (9th Cir.1996) (request for Rule 38 sanc provide does not suf party’s tions in brief opposing party). ficient notice to HERNANDEZ, Benito Defendant- days after this Accordingly, within Appellant. filed, opinion the debtors shall amended No. 02-50155. (1) why the court writing:

show cause Appeals, United States Court of attorneys’ should award fees and dou- Ninth Circuit. city ble costs to the defendants under Rule appeal is frivo- 38 because the debtors’ Argued and Submitted Nov. 2002. obvious, argu- result is and the lous—the Filed Dec. 2002. merit; wholly ments of error are without (2) attorneys’ why and the award fees Amended March imposed and costs should not be double severally

jointly against and the debtors Kramer, attorney, Esq. Shane their Bricklayers

See Int’l Local 20 v. Union of Jaska, Inc.,

Martin 1407 & (9th Cir.1985) (“[w]hen

n. ap- a frivolous taken,

peal is court the inherent [the has]

power upon impose appel- sanctions jointly severally,

lant and his counsel attorney

since and client are the best

position them between to determine who taken”). appeal to city

caused the be may reply days file a within. 14

defendants response.

after service of the debtors’

Ill

We affirm the BAP’s all dismissal of city

federal claims. The defendants’ attor-

neys’ fees and double costs will be ad- by separate upon

dressed order receipt of response city debtors’ and the defen- reply, any.

dants’ *2 legislation at passage

after the understanding, Applying this issue. contends that our decision because Buckland must be reconsidered it relied on a view of the Constitution *3 Supreme developed, Court’s deci- Apprendi, only after 21 U.S.C. sion Burns, Federal Public Defend- Todd W. § do not think that passed. 841 was CA, Inc., Diego, for Diego, San ers of San Supreme intended such a Court defendant-appellant. language of Harris. reading broad its O’Toole, Attor- K. United States Patrick Harris, issue, the statute at 18 (when filed), was brief Carol ney General 924(c)(1)(A), passed was at a (when Lam, Attorney United States C. Pennsylvania, time when McMillan v. (on filed), Bruce R. Castetter opinion was 91 L.Ed.2d 477 U.S. 106 S.Ct. (cid:127) brief), Attor- Assistant United States (1986), the law of the land. Haines, (argued), Assis- ney, Roger W. Jr. a that in- McMillan “sustained statute penalty minimum for a Attorney, Diego, San creased the tant United States crime, beyond statutory though CA, plaintiff-appellee. for the

maximum, sentencing judge when the found, by preponderance of the evi- dence, possessed that the defendant had Harris, a firearm.” 122 S.Ct. at 2410. context, simply rejected In that Harris argument the constitutional CANBY, Before: GOULD applies avoidance doctrine when there BERZON, Judges. Circuit Supreme clearly was a articulated Court at the time the stat- ruling constitutional GOULD; Opinion by Judge Concurrence passed. Harris ute was did not address by Judge BERZON. much more that ex- usual situation Buckland, ORDER in which a court in- isted terprets a a consti- statute so as to avoid 30, 2002, opinion, filed December that, at the time of the question tutional (the page follows and line AMENDED as passage legislation, had not been slip opinion): to the references are definitively by Supreme determined F.3d Page [314 438]: line Court. proper “It was Following the sentence Harris therefore left untouched the constitutional avoid- us use the canon of principle judicial re- fundamental ance in add: Buckland.” ordinarily requires courts to straint however, Hernandez, specifically statutes, possible if fairly construe it is reject- points in Harris language to the so, way in a that avoids unneces- to do ing dynamic statutory “a view of inter- sarily addressing ques- constitutional pretation, might which the text under Davis, Zadvydas tions. See yet anoth- thing mean one when enacted 678, 689, 121 S.Ct. prevailing er view of the Constitu- (2001) (“ principle’ a cardinal ‘[I]t is tion Id. at 2413. Her- changed.” later however, statutory interpretation, interprets language nandez this ‘a Congress when an Act of raises seri- broadly when inter- precluding court constitutionality, ous doubt’ as to its 'this considering con- preting statute from will first ascertain whether a con- Court possible only fairly of the statute is rulings stitutional first announced struction pas- sat in the front driver seat and front may be avoid question which the Benson, ”) senger primary seat of the minivan. At the (quoting ed.’ Crowell area, inspection dog a narcotics detector 22, 62, 285, 76 L.Ed. 598 52 S.Ct. U.S. to the in the alerted narcotics (1932)); In Lyng also v. Northwest see alert, dog minivan. After the Ass’n, Senior Cus- Cemetery Protective dian Inspector toms Edwin Smura obtained 439, 445, 99 L.Ed.2d U.S. driver, declaration from the checked the (1988) (“A long fundamental and legal occupants, status of the and asked judicial restraint standing principle going the driver where he was the Unit- reaching avoid con requires that courts coming ed States and where he was from in advance of the questions stitutional . conducting ques- Mexico. While them.”). necessity deciding that, tioning, Inspector Smura noted “[the *4 15, F.3d at Page [314 438]: line 12-16 nervous; passengers] very van’s all seemed by its terms Replace “And Harris does not stiff, contact, Diaz, very eye no and [Jose the fundamental canon of consti- supplant driver,] very seemed slow to answer can and should tutional avoidance: Courts questions.” adopt statutory interpretations, continue to After questioning, Inspector this Smura feasible, avoid serious con- when that will density used a meter to check the vehicle “Thus, Harris issues.” with stitutional a on the very high reading and obtained supplant the funda- not its terms does Next, driver’s side of the van. Smura avoidance: mental canon of constitutional driver, Diaz, step asked the Jose to out of adopt to can and should continue Courts the van. Smura searched the inside of feasible, when statutory interpretations, plastic saw clear driver’s door and constitutional is- that will avoid serious wrapped packages that he believed con- sues.” illegal drugs. tained Appellant’s petition changes, these With occupants The three of the minivan were petition for re- panel rehearing handcuffed and escorted to a second- then R.App. are denied. Fed. hearing en banc handcuffs ary security office where the P. re- occupants removed. The were were on a About five to quired to wait bench. OPINION occupants the three were ten minutes after GOULD, Judge: Circuit office, security the contents taken to case, whether the In this we must decide confirmed to mari- packages were be Hernandez’s defendant to juana, which later determined was containing commer- rear seat of a vehicle (97.24 pounds). At weigh kilograms 44.20 illegal drugs, conjunc- quantities cial mini- point occupants all three circumstances tion with all the other van, Hernandez, again including were officers, arresting known to the created handcuffed, and Hernandez was advised of him. probable cause to arrest chose to rights. his Miranda Hernandez and admitted that he

make a statement I act as “window being paid was $500 smuggling of the dressing” to facilitate the 21, 2001, Benito Hernandez August On an marijuana impression by giving in the rear seat of his uncle’s sitting from vacation. family returning innocent Minivan when the vehicle Ford Windstar 12, 2001, pled Hernandez On December States from Mexico. entered United marijuana respectively importing to one count of guilty uncle and aunt Hernandez’s 596 §§ 21 952 and 960 cause to arrest an individual is a mixed violation pursuant' question § 2 to a condition- of law and fact. United v. States

and 18 U.S.C. Cir.1999). Buckner, preserved plea right F.3d agreement al (1) if, totality the court’s denial of his mo- Probable cause exists under the appeal (2) suppress; and his motions relat- of the circumstances known to the arrest- tion to officers, prudent Apprendi May ing person would have ed On probability district court sentenced Hernandez to one concluded that there was a fair imprisonment, three that the month months individual had committed a crime. Ohio, 89, 91, halfway during residence house the Beck v. (1964); Newland, beginning year super- Bailey of his three term of (9th Cir.2001). appeal release. This follows. vised agents probable conclude border had cause to arrest Hernandez.2 II guarding country’s “The task of our argues that his “mere respon border is one laden with immense presence” passenger rear seat Bravo, sibility.” United States carrying drugs van across the border is (9th Cir.2002). F.3d Border enough to establish cause to agents serve as our first line of defense *5 arrest him. At issue here is not whether people preventing violating intent on our presence Hernandez’s mere in the minivan from into But in coming country. laws our supported his pres arrest but whether his so, doing agents these border have a relat ence, relationship to others in the vehi duty protect rights ed to the basic of indi cle, his behavior at the border and his viduals who legally country. cross into our proximity large amount of illegal goals required To effectuate the dual drugs gave the minivan officers suffi agents, our border we have allowed border probable cient cause to arrest him. persons agents objects to search both any that arrive at our borders “without begin by determining point We suspicion, long articulable level of so as the at which Hernandez was arrested. The search is routine.” determining See United States v. standard for per whether a (9th Cir.2002). Okafor, 285 F.3d simply son is under arrest is not whether leave, But we have maintained' requirement person believes that he is free to see police, agents, Mendenhall, and here border need United States v. probable (1980), cause to make a warrantless ar rest of an individual. See United States v. but rather whether a person reasonable (9th Vizo, Cir.1990). Del would believe that he or being she is sub agents probable Whether border have jected to more than “temporary detention easy considering 1. This only is not an task the size 2. We need conclude that Hernandez’s 5,525 country. presence our The United States has in the rear seal of the minivan in 1,989 miles of conjunction suspicious border with Canada and miles with his behavior and proximity with Our Mexico. maritime border includes commercial of ille- 95,000 shoreline, gal drugs gave agents probable miles of and a 3.4 million border cause square mile exclusive economic zone. And to arrest him. need not address whether year, each people more than 500 million cross cause would have existed to arrest States, vehicle, passengers borders into the United some 330 all the in the here contain- ing quantities million of whom are illegal drugs, non-citizens. See commercial http://www.whitehouse.gov/deptofhomeland had casting there been no other evidence sus- picion passengers. on the /sect3.html. by border-crossing formalities.” Ford Windstar minivan—a vehicle occasioned known Butler, 249 States v. F.3d officers to be commonly drug United used for (9th Cir.2001). trafficking. officer questioning learned that Hernandez was not mere claims that he was arrested hitchhiker, casual but was a relative of the him placed the officers handcuffs on when driver and passenger. front-seat The offi- secondary security him and escorted to the cers portion removed a of the door of the that Her- government argues office. The bags minivan and discovered clear not when officers nandez was arrested appeared to contain quantities commercial temporarily placed handcuffs on Hernan- illegal drugs. When the in- customs security him office but dez to escort to the spector interviewed the mini- driver of the placed instead when handcuffs were on van, Hernandez acted suspiciously, seemed security following Hernandez in the office very nervous and stiff and tried to avoid marijuana in positive identification of eye inspector. contact with the The bor- the minivan. agents purported der also saw that Bravo, that the we held defen drugs were within reach arm’s of Hernan- arrest while border dant was not under purported dez. The drugs were confirmed agents though searched his car even Bravo marijuana, in a be sizable amount be- temporarily handcuffed while he was yond that for individual use.3 secondary to a office and then escorted uncuffed and allowed to sit on bench Heiden, Applying United States v. being while his vehicle was searched. 295 Cir.1974), F.2d 901-902 we hold parallel F.3d at 1011. These facts Hernandez’s as a rear seat situation here. Hernandez was removed passenger containing in a vehicle commer- minivan, placed in temporarily from the quantities illegal drugs, together cial *6 a handcuffs while he was taken to second behavior, suspicious with his his relation- office, ary and then left uncuffed in the vehicle, ship occupants to the other secondary it that office until was confirmed proximity illegal drugs, his to those the in the the packages door of minivan gave agents probable border cause to ar- hold, marijuana. contained under Heiden, him. In agents rest border Bravo, by that Hernandez was arrested stopped suspected transporting a car agents security in border the office after illegal aliens. Id. at 900. The driver of mari agents positively the identified the produce key the car unable to a to the was minivan, in juana the not while Hernandez trunk, and when asked to remove the back temporarily was handcuffed border seat, driver said he not know how. the did un agents being while escorted from his agent Id. When the and the driver re- minivan to security cle’s the office. seat, agent marijua- moved the the smelled probable Upon inspection, agents ex- na. further Turning to whether cause Id. Hernandez, pounds marijuana isted to arrest examine the discovered 110 in the we present- the border trunk. Id. Heiden and the driver were situation officers were arrested, ed with at the time of Hernandez’s arrest. and the officers later discovered in sitting missing key Hernandez was the rear seat of a the trunk in Heiden’s sock. Bravo, Although, place we view the to have was first under arrest taken when Hernandez occurring secondary a as in the office after con- handcuffed. Even before technical confir- illegal drugs, bags marijuana, firmation of the nature of the we mation that the contained agent bags probable analysis experienced the border observed the would view cause they illegal drugs. if the considered and believed contained almost identical arrest were that a bartender to believe probable cause evidence of suppress sought Heiden Id. the claiming possessed officers heroin sale.6 key, at the tavern missing the him. Id. to arrest cause that the probable lacked makes clear Id. at 91. Ybarra prob- agents have held that border Heiden to arrest probable cause police do not have in a motor a passenger to arrest cause able a presence of the mere someone who a reason- have agents when border vehicle indepen police have party third whom passenger is involved belief that able However, to arrest. probable cause dent quantity of a commercial transporting in a apply passenger to a does not Ybarra Although Hernandez Id. drugs.4 illegal large quantity a vehicle contains in the vehicle passenger was not the sole of a presence The mere illegal drugs. than front-seat a rear-seat rather far public in a tavern is different patron our reason- under passenger, we conclude in a car con passenger’s presence a from here had agents that border in Heiden ing A illegal drugs. taining large quantity a Hernandez was a reasonable belief tavern, car, open to the unlike a is not com- transportation of a in the involved typically in a car passenger public. drugs because of illegal mercial driver, a but with the relationship has mini- seat of the the rear his does not so often have patron of a tavern van, unresponsive behavior suspicious his relationship the bartender. As with border, relationship to the other at the Wyoming noted Supreme Court illegal proximity to the occupants, and his 304-305, 119 Houghton, 526 U.S. hidden in the minivan. drugs (1999), pas “A car L.Ed.2d is no that Heiden argues pa tavern unwitting senger' —unlike Supreme following law longer good in a engaged often be tron in Ybarra—will Illinois, 444 in Ybarra v. decision Court’s driver, and enterprise with the common U.S. concealing have the same interest (1979).5 Ybarra, Supreme Court In wrongdo of their fruits or the evidence ar- no cause to there was ruled Here, rea agents good had ing.” border only connection a defendant whose rest Hernandez was en suspect sons to patron activity was that he was criminal enterprise with his police gaged had common public of a tavern where Re, 6.Appellant United States v. Di circuit. also cites of this 4. Heiden remains law *7 Buckner, 838, we 179 F.3d at L.Ed. 210 States v. 92 United 332 U.S. 68 Heiden, pas- "Murry, was the sole (1948) (informant held like identifies driver of car as large quantity senger transporting a in a car City passenger); v. not Rohde crook but of drugs border. Those facts of across tire U.S. (9th Cir.1998) (pas- Roseburg, 137 F.3d 1142 finding proba- support a of to were sufficient reported senger had been stolen of a car that States arrest Heiden.” United ble cause to fact that car several weeks when in earlier Carranza, (9th Cir.2002), 289 F.3d Robertson, stolen); United States v. was not clear, passen- "As Heiden we stated makes (9th Cir.1987) (woman standing 833 F.2d carrying ger's presence a com- in vehicle police had arrest war- outside of house where drugs across the border is cause, mercial of house) occupant support of to his rant for though enough even to find argument probable cause does not exist that enough to evidence without more is such presence his in to based on arrest Hernandez guilty sustain a verdict.” Since minivan. these the Ford Windstar presence” express "mere doc- the same cases argument already 5. We have foreclosed Ybarra, Carranza, argu- reach the do not trine as we States v. once before. See United (9th Cir.2002). presented But we address them. F.3d 634 ments in law again clarify remains the it to that Heiden of this circuit. uncle—the driver of the minivan —because scope We construe the and validity suspicious of Hernandez’s actions and his provisions plea in a agreement by deter in proximity drugs to the concealed the mining whether the defendant reasonably that minivan. We conclude Hernandez’s plea understood the of the agree terms non-fortuitous the rear seat of pleaded ment when he guilty. United quan- the minivan laden with a commercial Fuente, States v. De la 8 F.3d conjunction tity illegal drugs, (9th with his Cir.1993). contracts, As with other suspicious proximity behavior and his to provisions plea agreements may be am illegal drugs, gave agents border biguous. It makes sense to construe ambi probable cause to Hernandez. arrest guities in a plea agreement in favor of the defendant because of the government’s su

Ill Id. at 1338. perior bargaining power. Next, we examine Hernandez’s conten- Construing any ambiguities plea in the incorrectly tion that the district court de- Hernandez, agreement7 in favor of we find evidentiary him an hearing nied on the precluded that Hernandez is appeal from alleged issues of his nervousness and the ing the district court’s denial of certain point at which his arrest occurred. The evidentiary issues his hearing. Hernan government argues that Hernandez waived plea agreement dez’s conditional limits his right appeal his to district court’s deni- challenge, appeal, on of the district court’s evidentiary hearing al of an on these issues suppress denial of a motion to his arrest to alternative, plea agreement. his In the legal challenge continuing validity government argues the district Heiden, of United States v. 508 F.2d 898 court, discretion, scope within the of its (9th Cir.1974) Illinois, in light of Ybarra v. granted evidentiary hearing Hernandez an testimony on both elicited the issue of (1979). timing his nervousness and the of his ar- argues ambiguities Hernandez rest. plea favor, agreement, his construed in his A may right ap- defendant waive his to preserve right appeal his to scope peal part in whole or in if he knowingly evidentiary hearing. disagree. See voluntarily to the waiver. agrees language plea agree- The the conditional 3742(a)(1); United States 18 U.S.C. emphasizes ment is clear: It the motion to

Navarro-Botello, suppress, it on the pres- and focuses “mere Cir.1990) (holding right that waiver of ence” doctrine of Ybarra. agreement appeal part negotiated plea agree- did not make reference to Hernandez’s process public ment does not violate due or right appeal scope evidentiary of his policy). argues that he did not hearing before the district court. right appeal scope waive his of his

evidentiary plea in his hearing agreement appeal Even Hernandez could with government. scope evidentiary the the of his hearing, Her- portion plea agreement 7. presence” The relevant of the referred to as the "mere doctrine provides: passenger or "the doctrine” as discussed in 11(a)(2), 85, Pursuant to Rule the defendant 444 Ybarra v. Illinois U.S. 100 S.Ct. right specifically challenge, 338, (1979), reserves the to 62 L.Ed.2d 238 United States v. appeal, on trial Buckner, the court's denial of the (9th 1999) 179 F.3d 834 Cir. and pre-trial issue: (9th Soyland, United States v. 3 F.3d 1312 "[T]hat there was no cause for the Cir.1993), among other ER. cases” 68-69. commonly defendant’s arrest. This issue is 600 Mendoza-Paz, tional) and United v. States the dis- prevail, because not nandez would Cir.2002) (9th 1104, 1109-10 granted discretion, 286 F.3d court, its within

trict constitutional), § (holding 21 U.S.C. 960 evidentiary hearing ample an v. that Harris Hernandez now claims his nervous- about evidence that elicited States, 545, 122 S.Ct. United 536 U.S. government and his arrest.8 ness (2002), 2406, us requires L.Ed.2d 524 153 direct exami- on Inspector Smura asked and Mendoza-Paz Buckland that to hold the occu- the nervousness of nation about that the Su- wrongly analyzed and were and testi- Smura’s pants of the minivan prece- these has preme Court overruled relating to many facts mony pointed to and hold reject argument this dents. We arrest, conver- including his Hernandez’s Buckland and Mendoza-Paz have minivan, the the driver of with sation Harris, validity light continuing minivan and Smu- on drug dog alert nor undermine which did overrule drug smuggling prior knowledge ra’s them.9 open to cross-exam- vehicles. Smura was conclude that Harris matters. We argument, ination on these Appellant’s first Mendoza-Paz, right appeal overrules Buckland his and that Hernandez waived in Buckland indi hearing and evidentiary reasoning on our scope based in labels between that, right, cating had not waived that the difference if he even of a “sentencing factors” and “elements not abuse its discre- the district court did Ap important. Applying crime” was not Hernandez a limited granted it tion when 466, 120 prendi Jersey, v. New 530 U.S. evidentiary hearing. (2000), 2348, we S.Ct. IV asked in Buckland: “does required to a finding expose greater the defendant chal turn to Hernandez’s than that authorized punishment in 21 drug statutes U.S.C. lenge that the Buckland, 289 F.3d jury’s guilty verdict?” §§ the Fifth and Sixth 841 and 960 violate (quoting Apprendi, at at 566 530 U.S. by taking jury, from the and Amendments 2348). 120 S.Ct. judge, trial fact determina giving to the drug type tions—-the Hernandez contends that Buckland’s —that penalties for such “ele- minimizing determine the maximum the distinction between rejected we fac- Although squarely “sentencing of the offense” and violations. ments Buck States v. United validity light Supreme tors” argument lacks (9th Cir.2002) (en land, v. decision in Harris United 562 289 F.3d Court’s States, banc) § 841 constitu- 536 U.S. (holding U.S.C. conduct, fairly challenged discre- traceable to the

8. The district court did not abuse its (3) scope shaping the of Hernandez's evi- must be tion in a favorable court decision Also, dentiaiy hearing. we note Hernan- likely injury. redress Northeastern reciting Jacksonville, proffer dez a declaration did not Florida Contractors motion, predicate supporting re- 656, 663, facts L.Ed.2d 586 quired by Southern District of California Lo- (1993). inju- not "suffered an Hernandez has See, 47.1(g). e.g., cal Criminal Rule United ry § and cannot in fact” under 21 Wardlow, States directly challenge constitutionality. its Cir.1991). But, upon since relied Mendoza-Paz Buckland, concerning reasoning 21 U.S.C. challenge only 21 U.S.C. 9. Hernandez can claim, constitutionality § uphold of 21 litigant justiciable To have a *9 960, § the U.S.C. we in effect must decide standing three constitutional re- must meet (1) continuing validity of both Buckland and quirements: directly he must have suf- fact, (2) light injury injury be in of Harris. fered an in the must Mendoza-Paz (2002). disagree. L.Ed.2d 524 Harris developed, Constitution Supreme is consistent with Buckland and that Apprendi, holds Court’s decision in only after 21 “ § prior than the fact of a convic passed. ‘[o]ther U.S.C. 841 was We do not tion, any penalty fact increases the think that Supreme Court intended prescribed a crime beyond statutory such a reading broad of language its maximum,’ whether the statute calls it an Harris. factor, a sentencing element or ‘must be Harris, In issue, the statute at 18 U.S.C. jury, proved a beyond submitted to 924(c)(1)(A), § passed was at a time when ” (quoting reasonable doubt.’ Id. at 2410. 79, McMillan v. Pennsylvania, 477 U.S. 490, 2348)

Apprendi, 530 U.S. at 120 S.Ct. (1986) 106 S.Ct. 91 L.Ed.2d 67 added). (emphasis It is the “effect” of the the law of the land. McMillan “sustained important. fact that Apprendi, 530 U.S. a statute that pen- increased the minimum 494, 120 2348; Buckland, at S.Ct. crime, alty for a though beyond 566; Mendoza-Paz, at 286 F.3d at 1110. maximum, statutory when sentencing found, argument judge Hernandez’s second that Har- by preponderance trumps evidence, ris Buckland is based on the con- possessed that the defendant had rejected Harris, tention that Harris Buckland’s a firearm.” at context, use of the “canon of constitutional avoid- Harris simply rejected the ance.” Harris did no such thing. argument that the constitutional avoidance Supreme Court Harris did not employ applies doctrine clearly when there was a Supreme the canon of constitutional avoidance be- articulated Court constitutional “applies only cause canon when there ruling at the time passed. the statute was are serious concerns about the statute’s Harris did not address the much more constitutionality,” Buckland, and the Court found usual situation that existed in that there were not serious concerns about interprets which court a statute so as to there, that, the statute at issue question avoid a constitutional at the 924(c)(1)(A). Harris, passage S.Ct. at 2413. time of the legislation, had Although Harris did not involve a serious definitively by not been determined challenge the constitutionality Supreme of a stat- Court.

ute, Buckland It proper did. was for us to Harris therefore left untouched the fun use the canon of constitutional avoidance principle judicial damental restraint that in Buckland. ordinarily requires courts to construe stat

Hernandez, however, utes, specifically so, if points fairly possible it is to do to the language way Harris “a that avoids rejecting unnecessarily addressing dynamic statutory interpretation, view of questions. constitutional Zadvydas See v. Davis, under might which the text mean one 533 U.S. 121 S.Ct. (2001) (“ thing when yet pre enacted another is a cardinal ‘[I]t vailing view of the principle’ Constitution later statutory interpretation, how ever, changed.” Id. at 2413. Hernandez inter that when an Act Congress raises prets language broadly precluding ‘a constitutionality, serious doubt’ as to its a court interpreting when a statute from ‘this Court will first ascertain whether a considering rulings constitutional an fairly possible first construction of the statute is ”) only passage nounced after the leg question may which the be avoided.’ Benson, islation at issue. Applying (quoting this under Crowell 285 U.S. standing, (1932)); Hernandez contends that our 76 L.Ed. 598 see decision in Buckland must Lyng be reconsid Cemetery also Northwest Indian Ass’n, 439, 445, ered because it relied on a view of the Protective *10 (1988) (“A by United challenge This is foreclosed fun- ed. 1319, L.Ed.2d 534 Carranza, 289 F.3d ju- States principle of longstanding damental and Cir.2002) (“A charged with im- defendant avoid that courts requires dicial restraint drug is not re- porting possessing or in ad- questions reaching constitutional type and amount of them.”). to know the quired deciding necessity of vance of the drug.”). sup- Thus, by not its terms does Harris constitu- canon of fundamental

plant the AFFIRMED. should can and Courts

tional avoidance: BERZON, Judge, concurring. Circuit statutory interpretations, adopt continue to con- feasible, will avoid serious when 3, which is except I as to footnote concur issues, Avoiding such issues. stitutional the decision. necessary necessary, only when are considered which Judiciary by the restraint is a measure of respect Congress

and a measure

a coordinate branch. Buckland, it the court observed § language was unclear from Rowe; SIMO; Ra- Maria Tauni Dalores and drug type intended Congress whether Deleon; mirez; Villegas; Petra Petra judge or be determined quantity to Uribe; Fernandez; Candy Gabriela proof. burden jury, and under what Clark; Angelina Perez; Maria Buckland, con- at 567. Because Gonzalez; Garcia; Do- Lourdes Vilma sentencing requiring § struing 841 as Olivas; Osorio; Maria Silvie lores type and amount drug to determine judge Gonzales; Madrigal; Ana Maria and problems, posed serious constitutional Godina; Aguirre; Per Mariana Lidia § reading of because a constitutional Kim; aza; Chong Had Suk Claristine we “fairly possible,” Buckland Pak; Gomez; ley; Yong Hui Teresa doctrine properly used the avoidance Sloan; Maya; Teresa Noemi Wilson have intend- must Congress conclude that Miyako Kanai, Plaintiffs-Appellants, drug type and jury ed the to determine Id. doubt. quantity beyond a reasonable NEEDLETRADES, INDUS UNION OF indicate that was not hold or Harris does EMPLOYEES, TEXTILE TRIAL & error. Council; Union of Southwest District full, Rejecting appellants’ arguments Needletrades, & Textile Industrial nothing in Har- we now hold that there is AFL-CIO; Orea; Employees, Antonio Buckland’s contradicting overruling ris or Guevara, Defendants-Appel Roxana constitutionality of sustaining decision lees. § deci- 841 and Mendoza-Paz’s No. 01-55937. constitutionality of 21 sustaining sion Appeals, United States Court U.S.C. 960. Ninth Circuit. V Dec. 2002. Argued and Submitted Finally, that the rea- argues 16, Filed Jan.

soning in Buckland behind our decisions 6, 2003. Amended March government and require Mendoza-Paz prove requisite that Hernandez had type respect mens rea to both the with import- drug possessed he