FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50509
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-04514-
BEN-7
ROBERT COLLAZO, AKA Weasel,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50048
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-04514-
BEN-1
LINO DELGADO-VIDACA, AKA
Leonard Delgado, AKA Spanky,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50117
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-04514-
BEN-4
JULIO RODRIGUEZ, AKA Sniper,
Defendant-Appellant.
2 UNITED STATES V. COLLAZO
UNITED STATES OF AMERICA, No. 16-50195
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-04514-
BEN-2
STEVEN AMADOR, AKA Gordo,
AKA Insane,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50345
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-04514-
BEN-3
ISAAC BALLESTEROS, AKA Lazy,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted En Banc January 13, 2020
Pasadena, California
Filed December 2, 2020
UNITED STATES V. COLLAZO 3
Before: Sidney R. Thomas, Chief Judge, and William A.
Fletcher, Consuelo M. Callahan, Milan D. Smith, Jr.,
Sandra S. Ikuta, Jacqueline H. Nguyen, Paul J. Watford,
Andrew D. Hurwitz, Eric D. Miller, Bridget S. Bade and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Ikuta;
Dissent by Judge W. Fletcher
SUMMARY*
Criminal Law
In appeals by five defendants who were convicted of
conspiracy to distribute controlled substances under 21
U.S.C. §§ 846 and 841, the en banc court clarified the
requirements for conspiracy under § 846 and the facts that
trigger the penalties under 21 U.S.C. §§ 841(b)(1)(A)–(B).
The en banc court explained that to convict the defendants
of conspiracy under § 846 in this case, the government must
prove beyond a reasonable doubt that each defendant agreed
with another person that some member of the conspiracy
would commit the relevant underlying offense (here 21
U.S.C. § 841(a)), and that each defendant had the requisite
intent for a § 841(a) conviction.
The en banc court held that in order to obtain a particular
sentence under 21 U.S.C. § 841(b)(1)(A)(viii) and
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. COLLAZO
§ 841(b)(1)(B)(i) for a violation of § 841(a), the government
must prove beyond a reasonable doubt the specific type and
the quantity of substance involved in the offense, but not the
defendant’s knowledge (or intent) with respect to that type
and drug quantity.
The en banc court clarified that a conviction under § 846
does not require proof of a level of criminal intent greater
than that required for the underlying offense merely because
it is a conspiracy conviction. The en banc court concluded
that to obtain a conviction and particular sentence for
conspiracy to distribute controlled substances under § 846,
the government must prove only that the defendant’s mental
state was the same as if the defendant had been charged with
the underlying offense; the government need not prove the
defendant’s knowledge (or intent) with respect to the drug
type and quantity under § 841(b).
The en banc court overruled United States v. Becerra,
992 F.2d 960 (9th Cir. 1993), and its progeny to the extent
they depart from this decision. The en banc court explained
that this court’s error in Becerra and its progeny was the
failure to recognize that the rule of coconspirator liability for
substantive offenses in Pinkerton v. United States, 328 U.S.
640 (1946), which was incorporated into the Sentencing
Guidelines and applied regardless of whether the charge was
conspiracy or a substantive offense, does not apply to the
liability determination for a § 846 conspiracy offense.
Applying this approach to the case on appeal, the en banc
court held that the district court’s instruction—requiring the
jury to determine “whether the government proved beyond a
reasonable doubt that the amount of [the specified drug] that
was reasonably foreseeable to [each defendant] or fell within
UNITED STATES V. COLLAZO 5
the scope of his particular agreement equaled or exceeded” a
specified amount—was erroneous.
The en banc court remanded to the three-judge panel to
reconsider the harmless error issue and the balance of the
issues raised by the parties in light of this opinion, and to
enter an appropriate judgment.
Judge W. Fletcher—joined by Chief Judge Thomas and
Judges Nguyen, Watford, and Hurwitz—dissented. Noting
that any fact that by law increases the penalty for a crime is
an element that must be submitted to the jury and proved
beyond a reasonable doubt, and that there is a strong
presumption that Congress intends to require a culpable mens
rea as to every element of a crime, Judge Fletcher would hold
that when the government seeks enhanced penalties under
§§ 841(b)(1)(A) or (b)(1)(B), it must prove the defendant
“knowingly or intentionally” distributed the actual controlled
substance and quantity charged under §§ 841(b)(1)(A) or
(b)(1)(B).
6 UNITED STATES V. COLLAZO
COUNSEL
Benjamin L. Coleman (argued), Coleman & Balogh LLP, San
Diego, California; Timothy A. Scott and Nicolas O. Jimenez,
Scott Trial Lawyers APC, San Diego, California; for
Defendant-Appellant Steven Amador.
John C. Lemon, San Diego, California, for Defendant-
Appellant Julio Rodriguez.
Martin G. Molina, Law Office of Martin G. Molina, San
Diego, California, for Defendant-Appellant Lino Delgado-
Vidaca.
Gary P. Burcham, Burcham & Zugman, San Diego,
California, for Defendant-Appellant Robert Collazo.
Victor N. Pippins, Higgs Fletcher & Mack, San Diego,
California, for Defendant-Appellant Isaac Ballesteros.
Daniel E. Zipp (argued), Assistant United States Attorney;
Helen H. Hong, Chief, Appellate Section, Criminal Division;
Robert S. Brewer Jr., United States Attorney; United States
Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
Kimberly S. Trimble and Vincent J. Brunkow, Federal
Defenders of San Diego Inc., San Diego, California; Rich
Curtner, Federal Public Defender, Ancorage, Alaska; Michael
Filipovic, Federal Public Defender, Seattle, Washington;
Anthony Gallagher, Federal Defenders of Montana, Great
Falls, Montana; Andrea George, Federal Defenders of Eastern
Washington and Idaho, Spokane, Washington; John T.
Gorman, Office of the Federal Public Defender, Mongmong,
UNITED STATES V. COLLAZO 7
Guam; Lisa Hay, Federal Public Defender, Portland, Oregon;
Steven Kalar, Office of the Federal Public Defender, San
Francisco, California; Amy Karlin, Office of the Federal
Public Defender, Los Angeles, California; Dick Rubin,
Federal Defender Services of Idaho, Boise, Idaho; Jon Sands,
Federal Public Defender, Phoenix, Arizona; Heather
Williams, Office of the Federal Defender, Sacramento,
California; Peter Wolff, Federal Public Defender, Honolulu,
Hawaii; for Amici Curiae Ninth Circuit Federal Public and
Community Defenders.
Jeffrey L. Fisher, O’Melveny & Myers LLP, Menlo Park,
California; Ashley Robertson, O’Melveny & Myers LLP,
Washington, D.C.; for Amicus Curiae National Association
of Criminal Defense Lawyers.
OPINION
IKUTA, Circuit Judge:
Five defendants convicted of conspiracy to distribute
controlled substances under 21 U.S.C. §§ 846 and 841
challenge jury instructions that required the jury to determine
“whether the government proved beyond a reasonable doubt
that the amount of [the specified drug] that was reasonably
foreseeable to [each defendant] or fell within the scope of his
particular agreement equaled or exceeded” a specified
amount. We conclude that this instruction was erroneous.
After a defendant is convicted of conspiracy under § 846 to
distribute controlled substances in violation of § 841(a)(1),
the government may establish that the defendant is subject to
the penalties in § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) by
proving beyond a reasonable doubt that the § 841(a)(1)
8 UNITED STATES V. COLLAZO
offense involved the drug type and quantity set forth in the
two penalty provisions. The government is not required to
prove that the defendant knew (or had an intent) with respect
to the drug type and quantity set forth in those penalty
provisions in order for them to apply.
I
Robert Collazo, Lino Delgado-Vidaca, Julio Rodriguez,
Steven Amador, and Isaac Ballesteros are members of the
Mexican Mafia, “the largest prison gang in the United
States.” United States v. Rodriguez, 851 F.3d 931, 936 (9th
Cir. 2017). It was “formed in the 1950s by Hispanic street
gang members” for the purpose of protecting “Hispanics from
other such gangs within California’s jails and prisons.”
United States v. Shryock, 342 F.3d 948, 961 (9th Cir. 2003).
Over time, it “gained significant power and control over
illegal activities in the California prison system.” Id. As
members were released from prison, the organization
extended its dominion to certain parts of Southern California.
Id. Outside the prison walls, the Mexican Mafia demands
payments (called “taxes”) from local drug dealers and street
gangs in exchange for allowing them to distribute and sell
drugs in its territory. Rodriguez, 851 F.3d at 936.
The Mexican Mafia has a hierarchical structure. United
States v. Martinez, 657 F.3d 811, 815 (9th Cir. 2011). At the
top of the structure are the “made members” who are
independently responsible for their own territory. Each made
member has a “secretary” who ensures that the member’s
decisions are implemented. Further down the hierarchy are
the “meseros” who are responsible for making tactical
decisions, such as when to initiate prison riots, and for
overseeing the organization’s criminal activities within a
UNITED STATES V. COLLAZO 9
particular prison yard. The lower level participants are
referred to as “associates.” The primary duty of an associate
is to generate money for the Mexican Mafia through the
distribution and sale of narcotics. Whether narcotics are sold
in prison or on the street, every transaction is conducted on
behalf of the made member who controls the particular
territory.
The five defendants in this appeal worked for Luis “Boo-
Boo” Garcia, a made member of the Mexican Mafia who is
serving a life sentence at Pelican Bay State Prison in Northern
California. Each defendant had a defined role in the
organization. Robert Collazo was in charge of a prison yard
at Donovan Prison, and was responsible for coordinating
narcotics being smuggled into prison on a regular basis:
methamphetamine was smuggled by the ounce (roughly
28 grams), and heroin was smuggled by the piece (roughly
24 grams). Once the narcotics were smuggled into prison,
Collazo worked with various Mexican Mafia members,
including Ballesteros, to transfer those narcotics throughout
the prison. Collazo also sent Garcia $400 every month. Lino
Delgado-Vidaca, a Mexican Mafia member who had been
released from prison, collected taxes from drug dealers in San
Diego and conveyed payments to Garcia through Garcia’s
fiancée. Julio Rodriguez was initially incarcerated at
Lancaster State Prison and then transferred to Ironwood State
Prison. He was responsible for smuggling heroin into both
prisons. Rodriguez smuggled heroin in 50-gram increments;
each delivery included one 25-gram bag and two 12.5-gram
bags. Steven Amador, who was incarcerated at Centinela
State Prison, served as Garcia’s secretary. His primary
responsibility was collecting rent on behalf of Garcia.
Amador also helped smuggle narcotics into Centinela. Isaac
Ballesteros was incarcerated at Donovan State Prison. As a
10 UNITED STATES V. COLLAZO
mesero, he oversaw distribution and tax collection in one of
the prison yards.
Following a significant investigation by a joint state and
federal gang task force, the defendants were arrested and
charged with two counts of conspiracy. We are concerned
only with the second count: conspiracy to distribute
controlled substances, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii), 841(b)(1)(B)(i), and 846.1 The indictment
did not charge any defendant with a substantive offense
related to this conspiracy count.
After a ten-day trial, the parties agreed to jury instructions
and verdict forms. For Count 2 (conspiracy to distribute
controlled substances), the jury was instructed as follows:
The defendants are charged in Count 2 of the
indictment with conspiracy to distribute
controlled substances in violation of Section
841(a) and Section 846 of Title 21 of the
United States Code. In order for a defendant
to be found guilty of that charge, the
government must prove each of the following
elements beyond a reasonable doubt:
1
The indictment specifically alleged that the defendants “did
knowingly and intentionally conspire . . . to distribute: 50 grams and more
of actual methamphetamine, a Schedule II Controlled Substance;
500 grams and more of a mixture containing methamphetamine, a
Schedule II Controlled Substance; and 100 grams and more of heroin, a
Schedule II Controlled Substance.” The indictment also alleged a RICO
conspiracy, in violation of 18 U.S.C. § 1962(d), and criminal forfeiture,
pursuant to 18 U.S.C. § 1963.
UNITED STATES V. COLLAZO 11
First, beginning on a date unknown and
continuing up to and including March
2013, there was an agreement between
two or more persons to distribute
methamphetamine or heroin; and
Second, the defendant joined in the
agreement knowing of its purpose and
intending to help accomplish that purpose.
If the jury found a defendant guilty of conspiracy to distribute
controlled substances, the jury was instructed to make special
findings regarding drug quantity:
If you find a defendant guilty of the charge in
Count 2 of the indictment, you are then to
determine as to that defendant whether the
government proved beyond a reasonable
doubt that the amount of methamphetamine
that was reasonably foreseeable to him or fell
within the scope of his particular agreement
equaled or exceeded 50 grams of actual
methamphetamine or 500 grams of a mixture
containing methamphetamine in connection
with his criminal activity. Your decision as to
weight must be unanimous.
If you find a defendant guilty of the charge in
Count 2 of the indictment, you are then to
determine as to that defendant whether the
government proved beyond a reasonable
doubt that the amount of heroin that was
reasonably foreseeable to him or fell within
the scope of his particular agreement equaled
12 UNITED STATES V. COLLAZO
or exceeded 100 grams of heroin in
connection with his criminal activity. Your
decision as to weight must be unanimous.
During deliberation, the jury returned a note asking for
clarification on its duty to make special findings regarding
drug quantity.2 Only then did defense counsel raise his
concern that the jury instructions were not in accordance with
Ninth Circuit precedent. Relying on United States v. Ortiz,
362 F.3d 1274 (9th Cir. 2004), defense counsel argued that
the drug-quantity instruction should be phrased in the
conjunctive (reasonably foreseeable to him and fell within the
scope of his particular agreement), rather than in the
disjunctive (reasonably foreseeable to him or fell within the
scope of his particular agreement).3 After a brief recess, the
trial court ruled that Ortiz was not applicable, because it
interpreted the United States Sentencing Guidelines (the
“Guidelines”), rather than the relevant criminal statutes;
therefore, the court declined to change the jury instructions.
2
The note read:
Count 2. If we find the defendant guilty on Count 2
“foreseeable to him or fell within the scope of his
particular agreement equal to or exceeded 50 grams of
pure meth or 500 grams of a mixture . . .”
Q[:] Does this mean we have to determine if each
defendant individually met the 50/500 gram
requirement?
3
Defense counsel for each defendant expressly joined this argument,
except Delgado-Vidaca’s counsel.
UNITED STATES V. COLLAZO 13
The jury found each defendant guilty of conspiracy to
distribute controlled substances.4 As for the special findings
regarding drug quantity under § 841(b)(1)(A)–(B), the jury
found the requisite methamphetamine amount for Collazo and
Delgado-Vidaca, and the requisite heroin amount for
Amador, Ballesteros, Collazo, and Rodriguez. Each
defendant timely appealed, raising multiple claims of error,
including a challenge to the jury instructions for Count 2. 5
At the suggestion of the three-judge panel initially
assigned the consolidated appeals, we voted to hear the
appeals en banc to clarify our jury instructions for conspiracy
under § 846 and the facts that trigger the penalties under
§ 841(b)(1)(A)–(B).6 As explained in more detail below, our
prior decisions on this issue relied on the Guidelines’
definition of “relevant conduct,” see U.S.S.G. § 1B1.3
(1991), to determine a defendant’s liability for conspiracy
under 21 U.S.C. § 846 and the appropriate penalty under
21 U.S.C. § 841. See United States v. Torres, 869 F.3d 1089,
1097–98 (9th Cir. 2017). After the Sentencing Commission
revised the Guidelines’ definition of “relevant conduct,” we
recognized it was necessary to resolve en banc how this
change affected our interpretation of § 846 and § 841. Id. We
now conclude that the Guidelines’ definition of “relevant
conduct” is not applicable to our interpretation of § 846 or
§ 841. As a result, we must overrule our precedent and begin
4
The jury also found each defendant guilty of participating in the
RICO conspiracy.
5
Ballesteros did not join his co-defendants in challenging the jury
instructions on appeal until we requested supplemental briefing.
6
We address only this issue, and return the appeals to the three-judge
panel to address the remaining issues.
14 UNITED STATES V. COLLAZO
anew to determine what the government must prove to secure
a conviction and sentence under §§ 846 and 841(b).
We have jurisdiction under 28 U.S.C. § 1291. “We
review de novo whether the jury instructions accurately
define the elements of a statutory offense.” United States v.
Hicks, 217 F.3d 1038, 1045 (9th Cir. 2000).
II
In determining whether the jury instructions accurately
defined each element of a § 846 conspiracy to distribute
controlled substances in violation of § 841, we begin by
explaining the legal framework for these offenses.
A
The defendants were charged with conspiracy under
21 U.S.C. § 846, which provides: “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.” The pertinent offense in this case is
set forth in 21 U.S.C. § 841(a)(1), and the penalties
prescribed for this offense are set forth in 21 U.S.C.
§ 841(b)(1)(A)–(B). Although the defendants were not
charged with any substantive offenses under § 841(a)(1), this
section and § 841(b) are relevant to determining the elements
of the § 846 conspiracy convictions here.
In enacting § 846, Congress adopted the common law
understanding of conspiracy. United States v. Shabani,
513 U.S. 10, 13–14 (1994). Therefore, our interpretation of
§ 846 is guided by well-established principles of conspiracy
UNITED STATES V. COLLAZO 15
law. See Ocasio v. United States, 136 S. Ct. 1423, 1429
(2016) (stating that the general federal conspiracy statute’s
“use of the term ‘conspire’ incorporates long-recognized
principles of conspiracy law”).
First, the essence of conspiracy “is an agreement to
commit an unlawful act.” Iannelli v. United States, 420 U.S.
770, 777 (1975); see also Ocasio, 136 S. Ct. at 1429 (“A
defendant must merely reach an agreement with the specific
intent that the underlying crime be committed by some
member of the conspiracy.” (internal quotation marks and
emphasis omitted)). The agreement itself is the offense, and
it is not necessary for the government to prove that the
defendant or other participants committed the unlawful object
of the conspiracy.7 See Salinas v. United States, 522 U.S. 52,
65 (1997). The government is not required to prove every
detail of the agreement. See, e.g., United States v. Sharif,
817 F.2d 1375, 1378 (9th Cir. 1987) (rejecting the argument
that “there can be no conspiracy without proof of . . . such
terms as price, quantity, and time, place, and manner of
delivery”). Rather, a fact-finder may infer the existence and
scope of the agreement from the facts and circumstances
established at trial. Iannelli, 420 U.S. at 777 n.10; United
States v. Espinoza-Valdez, 889 F.3d 654, 656 (9th Cir. 2018).
“Once the existence of the conspiracy is shown, evidence
establishing beyond a reasonable doubt a knowing connection
of the defendant with the conspiracy, even though the
7
Nor does the government have to prove that the defendant or a
coconspirator took an overt act in furtherance of the agreement. See
Whitfield v. United States, 543 U.S. 209, 213–14 (2005). This
distinguishes § 846 from the general federal conspiracy statute, 18 U.S.C.
§ 371, which requires proof of an agreement among two or more persons
to commit an offense against the United States and that “one or more of
such persons do any act to effect the object of the conspiracy.”
16 UNITED STATES V. COLLAZO
connection is slight, is sufficient to convict him of knowing
participation in the conspiracy.” United States v. Meyers,
847 F.2d 1408, 1413 (9th Cir. 1988). At minimum, the
government must “show that each defendant knew or had a
reason to know of the scope of the conspiracy and that each
defendant had reason to believe that their own benefits were
dependent upon the success of the entire venture.”8 United
States v. Lapier, 796 F.3d 1090, 1095 (9th Cir. 2015)
(quoting United States v. Kostoff, 585 F.2d 378, 380 (9th Cir.
1978) (per curiam)). When the government proves that a
defendant had a knowing connection with an extensive
enterprise (such as a drug trafficking organization) and had
reason to know of its scope, a fact-finder may infer that the
defendant agreed to the entire unlawful scheme.9 See United
States v. Smith, 609 F.2d 1294, 1300 (9th Cir. 1979); see also
United States v. Tarantino, 846 F.2d 1384, 1393 (D.C. Cir.
1988) (applying similar principles in a case involving several
defendants who were alleged members of an extensive drug
conspiracy).
8
“Although conspirators must pursue the same criminal objective, a
conspirator need not agree to commit or facilitate each and every part of
the substantive offense.” Ocasio, 136 S. Ct. at 1429 (internal quotation
marks omitted and alteration adopted).
9
A defendant convicted of conspiracy may also be held criminally
liable for substantive offenses committed by other members of the
conspiracy, so long as the offenses were reasonably foreseeable and
committed in furtherance of the conspiracy. See Pinkerton v. United
States, 328 U.S. 640, 647–48 (1946); United States v. Sullivan, 522 F.3d
967, 977 (9th Cir. 2008) (per curiam). Such liability is not at issue here.
The rule of coconspirator liability under Pinkerton applies when the
government charges a defendant with substantive offenses that were
committed by other members of the conspiracy, see Pinkerton, 328 U.S.
at 647–48, not when the government charges a defendant with the crime
of conspiracy itself, see id. at 645.
UNITED STATES V. COLLAZO 17
Second, the government must prove that the defendant
had the “intent to effectuate the object of the conspiracy.”
United States v. U.S. Gypsum Co., 438 U.S. 422, 443 n.20
(1978); see also Salinas, 522 U.S. at 65 (“A conspirator must
intend to further an endeavor which, if completed, would
satisfy all of the elements of a substantive criminal offense.”).
The Supreme Court has established that “in order to sustain
a judgment of conviction on a charge of conspiracy to violate
a federal statute, the Government must prove at least the
degree of criminal intent necessary for the substantive offense
itself.” United States v. Feola, 420 U.S. 671, 686 (1975).
Applying the foregoing framework to § 846, in order to
convict a defendant of conspiracy, the government must
prove beyond a reasonable doubt that (1) the defendant
agreed with another person that some member of the
conspiracy would commit the relevant underlying offense
(here § 841(a)), and that (2) the defendant had the requisite
intent necessary for a conviction of the underlying offense.10
If the government satisfies its burden, the defendant “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 U.S.C. § 846.
10
For a conspiracy offense under § 846, the government need not
prove a level of criminal intent greater than that for the underlying
offense, see infra Section III. Because the government need not prove that
a defendant knew (or had an intent) with respect to a specific drug type
and quantity in order to secure a conviction under § 841(a) and penalties
under § 841(b)(1), see infra Section II.B, the government likewise need
not prove such knowledge or intent for purposes of § 846.
18 UNITED STATES V. COLLAZO
B
We now turn to the underlying offense at issue here,
21 U.S.C. § 841(a)(1), and the penalties prescribed for that
offense under § 841(b)(1)(A)–(B). In particular, we focus on
determining the requisite intent necessary for a conviction of
§ 841(a) and the imposition of the penalties under
§ 841(b)(A)–(B).
1
Section 841(a)(1) is straightforward. It states, “Except as
authorized by this subchapter, it shall be unlawful for any
person knowingly or intentionally—(1) to manufacture,
distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance.” The text of
the statute requires the government to prove beyond a
reasonable doubt that the defendant (1) knowingly or
intentionally (2) distributed11 (3) any “controlled substance,”
which is defined as “a drug or other substance, or immediate
precursor, included in” schedules I–V listed in 21 U.S.C.
§ 812. See 21 U.S.C. § 802(6); see also McFadden v. United
States, 576 U.S. 186, 192 (2015) (holding that as used in
§ 841(a)(1), the phrase “a controlled substance” means “some
unspecified substance listed on the federal drug schedules”).
Section 841(a) does not prescribe any penalties. Instead,
“any person who violates [§ 841(a)] shall be sentenced”
pursuant to § 841(b), which sets out the applicable penalties
when the violation involves specified predicate facts. Two
penalty provisions in § 841(b) are at issue here, one for
11
For convenience, we use the term “distribute” and its variations to
refer collectively to the actions prohibited by § 841(a)(1).
UNITED STATES V. COLLAZO 19
offenses involving methamphetamine and one for those
involving heroin. The methamphetamine provision states:
[A]ny person who violates subsection (a) of
this section shall be sentenced as follows:
(1)(A) In the case of a violation of
subsection (a) of this section involving—
...
(viii) 50 grams or more of
methamphetamine, its salts, isomers,
and salts of its isomers or 500 grams
or more of a mixture or substance
containing a detectable amount of
methamphetamine, its salts, isomers,
or salts of its isomers;
such person shall be sentenced to a term of
imprisonment which may not be less than
10 years or more than life and if death or
serious bodily injury results from the use of
such substance shall be not less than 20 years
or more than life, a fine not to exceed the
greater of that authorized in accordance with
the provisions of Title 18 or $10,000,000 if
the defendant is an individual or $50,000,000
if the defendant is other than an individual, or
both.
21 U.S.C. § 841(b)(1)(A)(viii). The heroin provision has the
same structure, but applies to offenses involving “100 grams
or more of a mixture or substance containing a detectable
20 UNITED STATES V. COLLAZO
amount of heroin” and imposes different terms of
imprisonment and fine amounts. 12 21 U.S.C.
§ 841(b)(1)(B)(i).
Before the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000), a defendant could be sentenced
“pursuant to a finding made by a judge . . . under a
preponderance of the evidence standard” because we
understood the drug type and quantity in § 841(b) to be a
“sentencing factor, not an element of the crime.” United
States v. Nordby, 225 F.3d 1053, 1058 (9th Cir. 2000),
overruled by United States v. Buckland, 289 F.3d 558, 568
(9th Cir. 2002) (en banc); see also Buckland, 289 F.3d at 564
& n.2 (stating that “before Apprendi virtually everyone
routinely treated drug quantity under § 841 as a ‘sentencing
factor’ that need not be found beyond a reasonable doubt by
a properly instructed jury”).
12
21 U.S.C. § 841(b)(1)(B)(i) states:
(B) In the case of a violation of subsection (a) of this
section involving–
(i) 100 grams or more of a mixture or substance
containing a detectable amount of heroin;
...
such person shall be sentenced to a term of
imprisonment which may not be less than 5 years and
not more than 40 years and if death or serious bodily
injury results from the use of such substance shall be
not less than 20 years or more than life, a fine not to
exceed the greater of that authorized in accordance with
the provisions of Title 18 or $5,000,000 if the defendant
is an individual or $25,000,000 if the defendant is other
than an individual, or both.
UNITED STATES V. COLLAZO 21
This changed after Apprendi and Alleyne v. United States,
570 U.S. 99 (2013). As explained in Alleyne, the Sixth
Amendment “provides that those accused of a crime have the
right to a trial by an impartial jury,” and “[t]his right, in
conjunction with the Due Process Clause, requires that each
element of a crime be proved to the jury beyond a reasonable
doubt.” 570 U.S. at 104 (cleaned up). To ensure this right,
it is necessary to make a “proper designation of the facts that
are elements of the crime.” Id. at 104–05. In this context,
Apprendi held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum” constitutes an element of the
crime that “must be submitted to a jury, and proved beyond
a reasonable doubt.” 530 U.S. at 490. Alleyne expanded on
Apprendi, and held that any fact which increases a mandatory
minimum also “constitutes an ‘element’ or ‘ingredient’ of the
charged offense” and must be submitted to the jury. 570 U.S.
at 107–08.
Under Alleyne’s reasoning, the facts of drug type and
quantity under § 841(b) constitute elements or ingredients of
the crime because they affect the penalty that can be imposed
on a defendant. Therefore, “in order to save [the] statute
from unconstitutionality,” we reinterpreted § 841 as requiring
such facts to be proved beyond a reasonable doubt to the jury.
Buckland, 289 F.3d at 564–68 (citation omitted). As made
clear in Apprendi and Alleyne, however, the purpose of
Buckland’s requirement is to protect a defendant’s Sixth and
Fifth Amendment rights. We treat drug type and quantity as
elements under section 841(b)(1) only for these constitutional
purposes. See United States v. Toliver, 351 F.3d 423, 430
22 UNITED STATES V. COLLAZO
(9th Cir. 2003), abrogated on other grounds by Blakely v.
Washington, 542 U.S. 296 (2004).13
Because Apprendi and Alleyne “did not rewrite § 841(b)
to add a new mens rea requirement,” United States v. Dado,
759 F.3d 550, 570 (6th Cir. 2014), they do not assist us in
determining the requisite mens rea necessary for the
imposition of penalties under § 841(b)(1)(A)–(B), the issue
now before us. Section 841(b)(1), unlike § 841(a), is silent as
to any mens rea requirement. We must therefore determine
whether Congress intended to require proof of a defendant’s
mens rea with respect to the requisite drug type and quantity
for the penalties in § 841(b)(1)(A)–(B) to apply. We turn to
that issue next.
2
Section 841(a) makes it unlawful for anyone to
“knowingly or intentionally” commit the offense of
distributing a controlled substance. We must therefore decide
“how far down” the text of the statute “the word ‘knowingly’
is intended to travel.” Liparota v. United States, 471 U.S.
419, 424 n.7 (1985) (quoting W. LaFave & A. Scott, Criminal
Law § 27 (1972)).
13
The dissent argues that Alleyne “reflects a broad concern about the
unfairness of sentencing schemes in which the facts that are legally
essential to the punishment need not be found beyond a reasonable doubt.”
Dissent at 65. Contrary to the dissent, Alleyne did not hold that it was
generally unfair for the district court to find facts that could increase the
sentence for a “legally prescribed offense” by a preponderance of
evidence. See Alleyne, 570 U.S. at 117. Rather, Alleyne held that it was
unconstitutional (a violation of the Sixth and Fifth Amendment) for the
court to find such a fact. Id.
UNITED STATES V. COLLAZO 23
In determining whether Congress intended a mens rea
requirement in a criminal statute to apply to noncontiguous
words or phrases, the Supreme Court uses ordinary tools of
statutory interpretation. The Court starts “as always, with the
language of the statute,” Dean v. United States, 556 U.S. 568,
572 (2009) (quoting Williams v. Taylor, 529 U.S. 420, 431
(2000)), and considers the natural reading of the language
using “ordinary English grammar,” Flores-Figueroa v.
United States, 556 U.S. 646, 650 (2009). In Flores-Figueroa,
for instance, the Court considered the language in 18 U.S.C.
§ 1028A(a)(1)—which punishes “[w]hoever . . . knowingly
. . . uses . . . a means of identification of another person”—to
determine whether “knowingly” applied to “means of
identification of another person.”14 556 U.S. at 650. The
Court held it did. Id. at 657. The statute’s adverb
(“knowingly”) was placed before a transitive verb (“uses”)
that has an object (“a means of identification of another
person”). Id. at 650–51. Accordingly, it was “natural to
read” this statutory language as establishing “how the subject
performed the entire action, including the object as set forth
in the sentence.” Id.; see also Rehaif v. United States, 139 S.
Ct. 2191, 2195 (2019) (holding that the term “knowingly” in
§ 924(a)(2)—which imposes penalties on a person who
“knowingly violates” certain subsections—“modifies the verb
14
Section 1028A(a)(1) states that:
Whoever, during and in relation to any felony violation
enumerated in subsection (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of
identification of another person shall, in addition to the
punishment provided for such felony, be sentenced to
a term of imprisonment of 2 years.
(emphasis added).
24 UNITED STATES V. COLLAZO
‘violates’ and its direct object,” including a separate, cross-
referenced statutory provision, 18 U.S.C. § 922(g)).15
This rule is not rigid: the word “knowingly” does not
necessarily apply to every word in “a long statutory phrase,
such that questions may reasonably arise about how far into
the statute the modifier extends.” Rehaif, 139 S. Ct. at 2196;
see also United States v. Taylor, 239 F.3d 994, 997 (9th Cir.
2001) (holding that the word “knowingly” in 18 U.S.C.
§ 2423(a), which makes it unlawful to “knowingly transpor[t]
an individual who has not attained the age of 18 years in
interstate or foreign commerce . . . with intent that the
individual engage in prostitution,” does not require the
15
18 U.S.C. § 924(a)(2) provides:
Whoever knowingly violates subsection (a)(6), (d), (g),
(h), (i), (j), or (o) of section 922 shall be fined as
provided in this title, imprisoned not more than 10
years, or both.
18 U.S.C. § 922(g)(5)(A) provides:
(g) It shall be unlawful for any person— . . .
(5) who, being an alien—(A) is illegally or
unlawfully in the United States . . . to . . . possess
. . . any firearm or ammunition . . . .
The Court read the word “knowingly” from § 924(a)(2) into § 922(g) and
then applied the “knowingly” requirement to each of the elements in the
statutory sentence in § 922(g)(5)(A) “that make a defendant’s behavior
criminal.” Rehaif, 139 S. Ct. at 2196.
UNITED STATES V. COLLAZO 25
government to prove that the defendant knew the victim’s
age).16
The Court also considers the “surrounding text and
structure.” Maracich v. Spears, 570 U.S. 48, 76 (2013). In
Dean, for instance, the Court interpreted 18 U.S.C. § 924(c),
which provides:
[A]ny person who, during and in relation to
any crime of violence or drug trafficking
crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime—
(i) be sentenced to a term of
imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced
to a term of imprisonment of not less than
7 years; and
(iii) if the firearm is discharged, be
sentenced to a term of imprisonment of
not less than 10 years.
16
Contrary to the dissent’s assertion, the Court does not count the
number of words between the mens rea requirement and an element of the
crime to aid its determination as to whether to apply the mens rea
requirement. Dissent at 59. Rather, the Court begins by considering the
natural reading of the statute using ordinary English grammar, and a
grammatical sentence can nevertheless be quite long. See, e.g., Thomas
R. Haggard, Justifiably Long Sentences, S.C. Law. Feb. 2000, at 11.
26 UNITED STATES V. COLLAZO
556 U.S. at 571 (quoting 18 U.S.C. § 924(c)(1)(A)) (emphasis
added). The Court held that there is no intent requirement
with respect to subsection (iii). Id. at 572–73. Although
“Congress expressly included an intent requirement for
[subsection (ii)]” by defining “brandish” in 18 U.S.C.
§ 924(c)(4) to mean “to display all or part of the firearm . . .
in order to intimidate that person,” it did not define
“discharge” to include such an intent requirement. Id.
(emphasis omitted). “[W]here Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Id. at 573 (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)).
In addition to considering the text and structure of the
statute, the Court recognizes the presumption, traceable to the
common law, that “Congress intends to require a defendant
to possess a culpable mental state regarding each of the
statutory elements that criminalize otherwise innocent
conduct.” Rehaif, 139 S. Ct. at 2195 (citation omitted). In
applying this background principle, the Court has
differentiated between statutes that are silent on mens rea,
and those that include a mens rea requirement. Where a
criminal statute is entirely silent on the mens rea required for
a criminal offense, the Court presumes that Congress did not
intend to “dispense with a conventional mens rea element,
which would require that the defendant know the facts that
make his conduct illegal.” Staples v. United States, 511 U.S.
600, 605 (1994). In such cases, the Court deems the
presumption of mens rea to be rebutted only when there is a
strong indication that Congress has created “‘public welfare’
or ‘regulatory’ offenses” and imposed “a form of strict
criminal liability through statutes that do not require the
UNITED STATES V. COLLAZO 27
defendant to know the facts that make his conduct illegal.”
Id. at 606. Where a statute includes a mens rea requirement,
such as § 841, we are not faced with the question whether
Congress intended to dispense with a mens rea requirement
entirely, as in Staples; rather, we must determine “how far
into the statute [does § 841(a)’s “knowingly”] modifier
extend[].” Rehaif, 139 S. Ct. at 2196.17
The presumption that Congress intended the defendant to
possess a culpable mental state as to “each of the statutory
elements that criminalize otherwise innocent conduct,” id.
at 2195 (quoting United States v. X-Citement Video, Inc.,
513 U.S. 64, 72 (1994)), is particularly appropriate when a
different reading would have the effect of criminalizing “a
broad range of apparently innocent conduct,” X-Citement
Video, 513 U.S. at 71 (citation omitted). Thus, in X-Citement
Video, the Court concluded that the word “knowingly” in
“knowingly transports . . . any visual depiction, if . . . such
visual depiction involves the use of a minor,” 18 U.S.C.
§ 2252(a), also applied to the phrase “involves the use of a
minor” because “the age of the performers is the crucial
element separating legal innocence from wrongful conduct.”
513 U.S. at 73. Similarly, in Rehaif, the Court held that the
word “knowingly” in the phrase whoever “knowingly
violates” § 922(g), which prohibits persons with certain
statuses from possessing firearms, applied to the status
element in § 922(g) because this reading “helps advance the
purpose of scienter, for it helps to separate wrongful from
innocent acts.” 139 S. Ct. at 2196–97. The Court reasoned
that “the possession of a gun can be entirely innocent,” and
17
Because Staples has little relevance to the “how far” question raised
in our case, the dissent’s reliance on Staples, Dissent at 55–56, 62, is
mistaken.
28 UNITED STATES V. COLLAZO
only the defendant’s status distinguished an innocent act from
a wrongful one under the statute. Id. at 2197.
By contrast, absent statutory language suggesting
otherwise, the scienter presumption does not apply to
elements that do not separate innocent from wrongful
conduct. See id. at 2196 (holding that because “jurisdictional
elements normally have nothing to do with the wrongfulness
of the defendant’s conduct, such elements are not subject to
the presumption in favor of scienter”). Thus, the Court
declined to apply this presumption in Dean because a
defendant found guilty of violating 18 U.S.C. § 924(c) “is
already guilty of unlawful conduct twice over: a violent or
drug trafficking offense and the use, carrying, or possession
of a firearm in the course of that offense,” and the finding that
the firearm is discharged (which is required under
§ 924(c)(1)(A)(iii) in order to impose a ten-year sentence)
merely enhances the consequences for such unlawful acts.
556 U.S. at 576; see also United States v. Crowder, 656 F.3d
870, 875 (9th Cir. 2011) (holding that the word “knowingly”
in the Sex Offender Registration and Notification Act
(SORNA), 18 U.S.C. § 2250(a)—which imposes criminal
penalties on any person who “knowingly fails to register or
update a registration as required by [SORNA]”—does not
apply to the phrase “as required by [SORNA]” because a
defendant would know failing to register was “not an
innocent act”).
When the statutory language is ambiguous, the Court
determines the meaning of the statutory text using other tools
of statutory construction, including the rule of lenity, the
canon of constitutional avoidance, and consistency with
legislative history. Thus, in X-Citement Video, the Court
noted that eliminating a scienter requirement as to the age of
UNITED STATES V. COLLAZO 29
the performers in a video involving sexual conduct “would
raise serious constitutional doubts” given that “nonobscene,
sexually explicit materials involving persons over the age of
17 are protected by the First Amendment,” and it was
“incumbent upon [the Court] to read the statute to eliminate
those doubts so long as such a reading is not plainly contrary
to the intent of Congress.” 513 U.S. at 72, 78. In cases of
“grievous ambiguity or uncertainty in the statute,” Dean,
556 U.S. at 577 (quoting Muscarello v. United States,
524 U.S. 125, 138–39 (1998)), the Court has also applied the
“longstanding recognition of the principle that ambiguity
concerning the ambit of criminal statutes should be resolved
in favor of lenity,” Liparota, 471 U.S. at 427 (citation
omitted). Finally, the Court has considered legislative history
but has generally given it little weight. See, e.g., Liparota,
471 U.S. at 430 n.13 (rejecting the government’s argument
that the legislative history supports its position); Rehaif,
139 S. Ct. at 2199 (rejecting the government’s legislative
history argument given that the history was “at best
inconclusive”).
3
We now apply these principles to § 841 to determine
whether the phrase “knowingly” in § 841(a) applies to the
drug type and quantity set forth in § 841(b)(1).
Section 841(a)(1) makes it unlawful for “any person
knowingly or intentionally” to distribute “a controlled
substance,” which is an “unspecified substance listed on the
federal drug schedules.” McFadden, 576 U.S. at 192.
Section 841(b)(1)(A)–(B) provide for the penalties to be
imposed in the case of a § 841(a)(1) violation “involving”
30 UNITED STATES V. COLLAZO
certain types and quantities of drugs. Unlike § 841(a),
§ 841(b)(1) is silent as to any mens rea requirement.
“As a matter of ordinary English grammar,” it is natural
to read the intent requirement of “knowingly or intentionally”
as modifying only the elements contained in the statutory
phrase defining the § 841(a)(1) offense, i.e., “distribute” and
“a controlled substance.” See Flores-Figueroa, 556 U.S. at
650. Section 841(b) is not the object of the verbs in
§ 841(a)(1). Compare 21 U.S.C. § 841, with Rehaif, 139 S.
Ct. at 2195 (relying on the fact that, in § 924(a)(2), the adverb
“knowingly” modifies the verb “violates” and its direct
object, § 922(g)). There is no natural or ordinary way to read
the intent requirement in § 841(a)(1) as modifying the drug
types and quantities in § 841(b).
While we begin by considering the natural reading of the
language, see Flores-Figueroa, 556 U.S. at 650, we do not
end there. We next turn to the structure and context of the
statute. See Dean, 556 U.S. at 572. As in Dean, the structure
of § 841(b) suggests that § 841(b)(1)(A)(viii) and
§ 841(b)(1)(B)(i) do not require proof that the defendant
knew about the drug type and quantity. In § 841(b)(6),
another provision in the same statute, Congress expressly
provided that those who violate § 841(a) and “knowingly or
intentionally use a poison . . . on Federal land,” thus causing
specified harms, are subject to certain penalties.18 21 U.S.C.
18
21 U.S.C. § 841(b)(6) provides:
Any person who violates subsection (a), or attempts to
do so, and knowingly or intentionally uses a poison,
chemical, or other hazardous substance on Federal land,
and, by such use—
UNITED STATES V. COLLAZO 31
§ 841(b)(6) (emphasis added). This language shows that
Congress knew how to require proof of mens rea with respect
to the predicate facts for sentences under § 841(b), and chose
not to do so in § 841(b)(1)(A)–(B). “Where Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Dean, 556 U.S. at 573
(alteration adopted and quotation omitted). Moreover, if we
were to interpret the intent requirement in § 841(a) as
modifying the numerous sentencing facts included under
§ 841(b), the intent requirement in § 841(b)(6) would be
surplusage. The “canon against surplusage is strongest”
where, as here, “an interpretation would render superfluous
another part of the same statutory scheme.” Marx v. Gen.
Revenue Corp., 568 U.S. 371, 386 (2013).
Because this redundancy fatally undermines the dissent’s
position, the dissent attempts to distinguish § 841(b)(6) from
§ 841(b)(1). According to the dissent, while the mens rea
requirement in § 841(a) travels to the various subsections of
§ 841(b)(1), it does not travel to § 841(b)(6) because this
subsection specifies a “separate criminal act” of “us[ing] a
(A) creates a serious hazard to humans, wildlife, or
domestic animals,
(B) degrades or harms the environment or natural
resources, or
(C) pollutes an aquifer, spring, stream, river, or
body of water,
shall be fined in accordance with Title 18 or imprisoned
not more than five years, or both.
32 UNITED STATES V. COLLAZO
poison, chemical, or other hazardous substance on Federal
land.” Dissent at 63–64. And because the traveling mens rea
requirement in § 841(a) cannot reach this “separate criminal
act,” the dissent contends, Congress had to add an additional
mens rea requirement to § 841(b)(6). Id.
This argument has no support in grammar or caselaw.
The structure of § 841(b)(1) and § 841(b)(6) is similar; both
apply to “any person who violates subsection (a),” and list
certain predicate facts that subject such person to specified
penalties.19 As we have explained, there is no natural or
grammatical way to read the mens rea in § 841(a)(1) as
applying to the predicate facts in § 841(b)(1). Not
surprisingly, it is equally unnatural and ungrammatical to
read the mens rea in § 841(a)(1) to apply to the predicate facts
in § 841(b)(6). The dissent fails to explain why it is more
unnatural and ungrammatical to apply § 841(a)’s mens rea
requirement to § 841(b)(6) than to § 841(b)(1), such that the
mens rea travels to § 841(b)(1) but not § 841(b)(6). Nor has
the dissent explained why it makes a difference that the
conduct described in § 841(b)(6) (poisoning federal lands)
could constitute a separate criminal act prosecutable under
some other statute. Neither the Supreme Court nor we have
endorsed any background principle that mens rea
requirements are less likely to travel to predicate facts that
can be prosecuted separately under other federal laws.
19
The predicate facts in § 841(b)(6) are not distinguishable from the
predicate facts in § 841(b)(1) in any relevant way. Both subsections
provide the predicate facts for sentencing purposes. When Congress
wanted to establish independently prosecutable offenses in § 841, it added
additional sections, such as § 841(g) (criminalizing internet sales of date
rape drugs) and § 841(h) (criminalizing dispensing of controlled
substances by means of the internet).
UNITED STATES V. COLLAZO 33
The presumption that Congress did not want to
“criminalize a broad range of apparently innocent conduct,”
X-Citement Video, 513 U.S. at 71 (cleaned up), and the
importance of scienter “in separating wrongful from innocent
acts,” Rehaif, 139 S. Ct. at 2196, do not undercut our reading
of the statutory text here.20 Knowingly distributing a
controlled substance in violation of § 841(a)(1) is not an
“entirely innocent” act. Rehaif, 139 S. Ct. at 2197.
Regardless of the type and quantity of the controlled
substance, there is no risk that a defendant would fail to
understand the unlawful nature of the act. Our precedent is
in accord; we have long recognized the basic rule that a
defendant charged with a controlled substance offense “need
not know the exact nature of the substance with which he was
dealing,” but “can be convicted under § 841 . . . if he believes
he has some controlled substance in his possession.” United
States v. Ramirez-Ramirez, 875 F.2d 772, 774 (9th Cir. 1989)
(quotation omitted) (collecting cases).
Nor does the structure of § 841(a) and (b), providing
different penalties for different drug types and quantities,
raise an inference that some scienter is necessary. See Dean,
556 U.S. at 573. Where a criminal statute does not provide
a scienter requirement, the Court has held the imposition of
harsh penalties on defendants who were unaware they were
violating the law supports the inference that Congress did not
intend to create a strict liability public welfare offense.
20
Contrary to the dissent’s suggestion, Dissent at 64–65, Judge (now
Justice) Kavanaugh, in dissenting in United States v. Burwell, chose not
to address the question of “how the presumption [of mens rea] applies to
a fact that Congress made a sentencing factor but that must be treated as
an element of the offense for Fifth and Sixth Amendment purposes.”
690 F.3d 500, 540 n.13 (D.C. Cir. 2012) (en banc) (Kavanaugh, J.,
dissenting).
34 UNITED STATES V. COLLAZO
Staples, 511 U.S. at 618. Such a concern is not implicated in
§ 841, under which the defendant must be found guilty of
knowingly or intentionally distributing controlled substances.
Once a defendant knowingly or intentionally violates federal
law, “it is not unusual to punish individuals for the
unintended consequences of their unlawful acts.” Dean,
556 U.S. at 575 (emphasis in original). The severity of a
penalty need not be “precisely calibrated to the level of mens
rea.” Burwell, 690 F.3d at 510 (citing Dean, 556 U.S. at
575).
Because the statutory language is not ambiguous, the
other tools of statutory construction are unnecessary here. In
any event, they do not conflict with our conclusion. First,
defendants claim that the rule of lenity supports imposing
mens rea requirements for the drug types and quantities in
§ 841(b). We disagree. The rule of lenity “applies only
when, after consulting traditional canons of statutory
construction, we are left with an ambiguous statute.” Shular
v. United States, 140 S. Ct. 779, 787 (2020) (quotation
omitted). “To invoke the rule, we must conclude that there is
a grievous ambiguity or uncertainty in the statute.” Dean,
556 U.S. at 577 (citing Muscarello, 524 U.S. at 138–39).
Given the statutory text and structure of § 841(b), it is clear
the provision does not contain an intent requirement and the
defendants’ “contrary arguments are not enough to render the
statute grievously ambiguous.” Id.
Nor does the canon of constitutional avoidance require us
to interpret § 841 as imposing a mens rea requirement for the
drug type and quantity in order to avoid conflicting with the
Due Process Clause and the Sixth Amendment. Congress’s
decision not to impose a mens rea requirement is consistent
with the Due Process Clause. That “the government must
UNITED STATES V. COLLAZO 35
prove that the defendant knew he was importing some
amount of a controlled substance . . . is sufficient to ensure
the statute penalizes only culpable conduct.” United States v.
Jefferson, 791 F.3d 1013, 1018 (9th Cir. 2015). Similarly, the
Sixth Amendment is not implicated, because the government
is required to prove drug type and quantity to the jury beyond
a reasonable doubt. See Buckland, 289 F.3d at 568. Apprendi
and Alleyne do not affect the question whether the word
“knowingly” applies to the drug types and quantities set out
in § 841(b). The dissent’s argument to the contrary, Dissent
at 54, “confuses the requisite burden of proof with the mens
rea standard.” Jefferson, 791 F.3d at 1017 (citing Dado,
759 F.3d at 570). We comply with the constitutional mandate
announced in Apprendi and Alleyne by requiring drug type
and quantity under § 841(b) to be found by a jury beyond a
reasonable doubt. See Buckland, 289 F.3d at 568.
Nor is recourse to legislative history necessary here.
Where there is settled precedent on the interpretation of a
statute, “we presume that when Congress reenacted the same
language” in subsequent acts, “it adopted the earlier judicial
construction of that phrase.” Helsinn Healthcare S.A. v. Teva
Pharm. USA, Inc., 139 S. Ct. 628, 633–34 (2019). The
judicial consensus that the government need not prove that
the defendant “knowingly or intentionally” distributed a
particular drug type and quantity has long been settled, see
infra at 36 & n.21, and was not affected by the decisions in
Apprendi or Alleyne. Indeed, Congress has amended § 841
six times since Apprendi was decided (once since Alleyne),
without altering the statutory framework. Cf. Rehaif, 139 S.
Ct. at 2199 (there had been “no definitive judicial consensus”
as to whether a defendant’s knowledge of his status was
required under § 922(g), and Congress responded to the open
question by amending the statute to include such an intent
36 UNITED STATES V. COLLAZO
requirement). Accordingly, the structure of § 841(a)–(b)
compels the conclusion that Congress did not intend to
require the government to prove a defendant’s knowledge
with respect to the drug type or quantity.
Our analysis is consistent with our prior opinions, which
concluded that no intent requirement applies to drug types
and quantities under § 841. See United States v. Soto-Zuniga,
837 F.3d 992, 1005 (9th Cir. 2016); see also Jefferson,
791 F.3d at 1015. In Jefferson, on which Soto-Zuniga relied,
we interpreted 21 U.S.C. § 960(a) and (b), which are
substantially identical to § 841(a) and (b), and concluded that
the government did not have “to prove that the defendant
knew the type or quantity of the controlled substance he
imported to obtain a conviction under § 960(a), or for the
penalties under § 960(b) to apply.” 791 F.3d at 1015
(citations omitted). We subsequently confirmed that this
interpretation applies to § 841(a) and (b). See Soto-Zuniga,
837 F.3d at 1005. In reaching this conclusion, we joined
every other circuit to consider this issue; all have held that
§ 841(b)(1) does not require a finding of a defendant’s mens
rea with respect to the drug type and quantity. 21
21
United States v. Collazo-Aponte, 281 F.3d 320, 326 (1st Cir. 2002);
United States v. Andino, 627 F.3d 41, 45–47 (2d Cir. 2010); United States
v. Barbosa, 271 F.3d 438, 458 (3d Cir. 2001); United States v. Brower,
336 F.3d 274, 277 (4th Cir. 2003); United States v. Betancourt, 586 F.3d
303, 308–09 (5th Cir. 2009); Dado, 759 F.3d at 569–70; United States v.
Carrera, 259 F.3d 818, 830 (7th Cir. 2001); United States v. Ramos,
814 F.3d 910, 915–17 (8th Cir. 2016); United States v. De La Torre,
599 F.3d 1198, 1204 (10th Cir. 2010); United States v. Sanders, 668 F.3d
1298, 1310 (11th Cir. 2012); United States v. Branham, 515 F.3d 1268,
1275–76 (D.C. Cir. 2008).
UNITED STATES V. COLLAZO 37
In sum, we conclude that in order to obtain a particular
sentence under § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) for
a violation of § 841(a), the government must prove beyond a
reasonable doubt the specific type and the quantity of
substance involved in the offense, but not the defendant’s
knowledge of (or intent) with respect to that type and
quantity.
III
We have established in Section II.A, supra, that to convict
the defendants of conspiracy under § 846 in this case, the
government must prove beyond a reasonable doubt that each
defendant agreed with another person that some member of
the conspiracy would commit a § 841(a) offense, and that
each defendant had the requisite intent necessary for a
§ 841(a) conviction. We have also established in Section II.B,
supra, that the requisite intent necessary for a § 841(a)
conviction (and for the imposition of the penalties specified
in § 841(b)(1)(A)–(B)) does not include knowledge of the
relevant drug type or quantity. This concludes our
explication of the elements of a § 846 conspiracy to commit
a violation of § 841(a), and the imposition of penalties under
§ 841(b)(1). We now turn to defendants’ further arguments,
and clarify that a conviction under § 846 does not require
proof of a level of criminal intent greater than that required
for the underlying offense merely because it is a conspiracy
conviction.
A
The Supreme Court addressed the question whether a
conspiracy conviction required a heightened mens rea in
Feola. In that case, a defendant had been charged with
38 UNITED STATES V. COLLAZO
conspiracy (under the general federal conspiracy statute,
18 U.S.C. § 371) to assault a federal official in violation of
18 U.S.C. § 111(a)(1). See Feola, 420 U.S. at 672–73. The
Court first determined that the underlying substantive offense
did not require proof that the defendant intended “to assault
a federal officer,” rather, the government had to prove only
that the defendant intended to assault someone. Id. at 684.
The Court then considered “whether the rule should be
different where persons conspire to commit” such an assault,
id. at 686, and concluded that it should not, see id. at 686–96.
In so holding, the Court stated the general rule “that where
knowledge of the facts giving rise to federal jurisdiction is
not necessary for conviction of a substantive offense
embodying a mens rea requirement, such knowledge is
equally irrelevant to questions of responsibility for conspiracy
to commit that offense.” Id. at 696.
In reaching this conclusion, Feola first considered
whether the text of the conspiracy statute required proof of a
greater intent than the intent required for the underlying
offense. It concluded that § 371 (the conspiracy statute at
issue) “offers no textual support for the proposition that” a
defendant who agreed to assault an individual must have
knowledge as to the employment status of the victim. Id. at
687.
Second, Feola concluded that “it is clear that one may be
guilty as a conspirator for acts the precise details of which
one does not know at the time of the agreement.” Id. at 692;
see also id. at 694 (explaining the common law principle that
“conspiracy is an inchoate crime,” which means that the
agreement is, by definition, undeveloped). Feola therefore
rejected the defendant’s argument “that it is improper to find
conspiratorial liability where the parties to the illicit
UNITED STATES V. COLLAZO 39
agreement were not aware of” all the elements of the
underlying offense “because the essence of conspiracy is
agreement and persons cannot be punished for acts beyond
the scope of their agreement.” 420 U.S. at 692.
Third, Feola established the general principle that where
an element of the underlying substantive offense does not
include an intent requirement, the same will be true for a
conspiracy to commit that offense, “unless one of the policies
behind the imposition of conspiratorial liability is not served”
by having the same intent. Id. at 693. According to the
Court, the “two independent values served by the law of
conspiracy” are: (1) “protection of society from the dangers
of concerted criminal activity;” and (2) “intervention of the
criminal law” at a “point in the continuum between
preparation and consummation” of a criminal act when “the
likelihood of a commission of an act is sufficiently great and
the criminal intent sufficiently well formed.” Id. at 693–94.
When applying this principle, the central question is whether
the act of agreeing with another person that some member of
the conspiracy will commit a crime is as blameworthy and
dangerous to society as the act of the lone criminal who
actually commits that same crime. If the agreement and the
commission are equally opprobrious, the conspirator and the
person who commits the act should be held to the same
standard, at least with respect to intent. See id. In the federal
assault statute at issue in Feola, knowledge of the victim’s
identity was not necessary for conviction of the substantive
offense, and thus was “equally irrelevant to questions of
responsibility for conspiracy to commit that offense.” Id.
at 696. Therefore, “its imposition . . . would serve only to
make it more difficult to obtain convictions on charges of
conspiracy, a policy with no apparent purpose.” Id. at 694.
40 UNITED STATES V. COLLAZO
Although Feola stated its specific holding in terms of
“facts giving rise to federal jurisdiction,” id. at 696, its
framework for determining whether the intent requirement for
a conspiracy count is “greater than” the intent required for the
underlying substantive offense, id. at 686, is generally
applicable. First, Feola did not limit its analysis to
jurisdictional facts it deemed extraneous to “the offense
Congress intended to describe and to punish.” Id. at 676 n.9.
To the contrary, Feola stated that labeling a requirement as
“jurisdictional” does not mean the requirement “is viewed as
outside the scope of the evil Congress intended to forestall.”
Id. In the case before it, Feola deemed the status of the
victim as a federal agent to be a significant component of the
assault offense under § 111 because Congress sought “to
protect the integrity of federal functions and the safety of
federal officers.” Id. Given that the element of the assault
offense regarding the victim’s status is not merely
jurisdictional, Feola’s analysis readily applies to other
elements of an offense.
Second, we have previously reached the conclusion that
“the rule of Feola” is a general one that requires “the same
degree of intent for the conspiracy charge as is required by
the underlying statute.” United States v. Thomas, 887 F.2d
1341, 1347 (9th Cir. 1989); see United States v. Hubbard,
96 F.3d 1223, 1229 (9th Cir. 1996) (citing Feola, 420 U.S.
at 696) (holding that “a federal conspiracy conviction does
not require a greater level of criminal intent than a conviction
on the substantive count”). We have applied this general rule
to contexts involving facts that were not jurisdictional. For
instance, we held that when a person was charged with
conspiracy to receive stolen explosives, the government did
not have to prove the person knew the dynamite was stolen,
but only that the person had “reasonable cause to believe”
UNITED STATES V. COLLAZO 41
that fact, which was the same degree of scienter required by
the underlying offense. United States v. Karr, 742 F.2d 493,
497 (9th Cir. 1984); see also Thomas, 887 F.2d at 1347
(explaining the ruling in Karr). Similarly, in United States v.
Baker, we held that if a conviction of a violation of a federal
statute does not require proof of an intent to violate that law,
“neither does a conviction for conspiring to engage in
activities which violate” that law. 63 F.3d 1478, 1493 (9th
Cir. 1995).22
B
We apply Feola’s general rule here. Adhering to Feola’s
analytical framework, we first start by examining the plain
language of the conspiracy statute, 21 U.S.C. § 846. Like the
general conspiracy statute, § 846 “offers no textual support”
for the proposition that a defendant must possess a degree of
intent as to the type and quantity of drug involved in the
underlying offense.23 Rather, § 846’s requirement that a
22
The Eleventh Circuit has likewise applied Feola outside the context
of jurisdictional facts. See, e.g., United States v. Whyte, 928 F.3d 1317,
1332 (11th Cir. 2019) (relying on Feola for the proposition that where the
“offense of sex trafficking of a minor does not require knowledge of the
victim’s status as a minor,” then the conspirator “cannot import such a
requirement into her conspiracy offense.”); see also United States v.
Duran, 596 F.3d 1283, 1296 (11th Cir. 2010) (holding that where a
defendant has been charged with conspiracy to act as an agent of a foreign
government without providing the required notification, the government
does not have to prove the defendant knew of the notification requirement
when the underlying substantive offense does not require proof of such
knowledge).
23
Compare 18 U.S.C. § 371 (“If two or more persons conspire either
to commit any offense against the United States, or to defraud the United
States, or any agency thereof in any manner or for any purpose, and one
42 UNITED STATES V. COLLAZO
conspirator “shall be subject to the same penalties as those
prescribed for the [underlying] offense” indicates that the
penalties for a § 846 offense must be “the same” as the
penalties for the underlying offense, which also suggests that
the facts triggering those penalties must be “the same.” This
undercuts the argument that Congress intended to require the
government to prove a different (and heightened) mens rea in
the conspiracy context.
Second, because “it is clear that one may be guilty as a
conspirator for acts the precise details of which one does not
know at the time of the agreement,” Feola, 420 U.S. at 692,
the fact that a defendant (who has been convicted of
conspiracy under § 846 for an agreement to violate § 841(a))
may not have known about certain details regarding drug type
and quantity does not preclude subjecting that defendant to a
statutory penalty based on those unknown details. Therefore,
we reject the defendants’ argument that conspirators who
agree to distribute controlled substances cannot be punished
unless they knew the specific drug type and amount to be
distributed.
Defendants argue that the Supreme Court revived this
argument in Ocasio by referencing the “long-recognized
principle[] of conspiracy law” that “the fundamental
characteristic of a conspiracy is a joint commitment to an
‘endeavor which, if completed, would satisfy all of the
or more of such persons do any act to effect the object of the conspiracy,
each shall be fined under this title or imprisoned not more than five years,
or both.”), with 21 U.S.C. § 846 (“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.”).
UNITED STATES V. COLLAZO 43
elements of the underlying substantive criminal offense.’”
136 S. Ct. at 1429 (alteration adopted) (quoting Salinas,
522 U.S. at 65). We disagree. Ocasio did not consider the
specific question raised in Feola, let alone overrule Feola’s
general rule. In fact, Ocasio never cited Feola. Because
Ocasio merely recites a general common law principle
without discussing how it applies in the context of
determining a conspirator’s intent, we are bound by Feola’s
specific direction.24
Last, as indicated in Feola, we consider whether requiring
the same mens rea for a § 846 conspiracy as for the
underlying offense would fail to serve the values of
protecting society from “the dangers of concerted criminal
activity” or intervening in a criminal agreement before the
criminal act took place. Feola, 420 U.S. at 693. As the Court
held in Feola, we conclude that the offense of conspiracy to
distribute a controlled substance is as “opprobrious” and
dangerous to society as the act of the individual drug dealer
who actually distributes the controlled substance. Id.
Because the acts are equally blameworthy, and the person
who commits the underlying act need not know drug type and
24
For the same reason, we reject the views of the Fifth Circuit in
United States v. Anderson, 932 F.3d 344, 352 (5th Cir. 2019). In
Anderson, the Fifth Circuit held that where a person has been charged with
conspiracy to receive money obtained from extortion, the government
must prove that the conspirator knew the money was the proceeds of
extortion, even though the underlying substantive offense does not require
proof of such knowledge. Id. Citing Ocasio, the Fifth Circuit reasoned
that the “mens rea for conspiracy is distinct and more demanding” than for
the underlying substantive count because the government must prove that
the defendant agreed that some member of the conspiracy would commit
every element of the offense. Id. The Fifth Circuit stands alone with this
approach. Because it fails to mention, let alone distinguish, Feola, which
rejected a similar argument, we decline to follow it.
44 UNITED STATES V. COLLAZO
quantity, that knowledge “is equally irrelevant to questions of
responsibility for conspiracy to commit that offense.” Id.
at 696. Moreover, as was the case in Feola, the imposition of
an additional burden on the government to prove the
conspirator’s knowledge of drug type and quantity “would
serve only to make it more difficult to obtain convictions on
charges of conspiracy, a policy with no apparent purpose.”
Id. at 694.
Accordingly, we conclude that to obtain a conviction and
a particular sentence for conspiracy to distribute controlled
substances under § 846, the government must prove only that
the defendant’s mental state was the same as if the defendant
had been charged with the underlying offense. Applying that
principle here, the government need not prove the defendant’s
knowledge of the drug type and quantity under § 841(b).
IV
While our conclusion is grounded in the text of the statute
and principles of conspiracy law, it is markedly different
from how we have previously characterized the framework
for determining drug type and quantity when a defendant is
charged under § 846 or § 841.25 We briefly explain why our
prior approach, which heavily relied on the formulation in the
Guidelines, was mistaken.
The Guidelines provides detailed advisory guidance to
federal judges in determining the sentencing range for a
convicted defendant. “As a matter of administration and to
secure nationwide consistency, the Guidelines should be the
starting point and the initial benchmark” for all sentencing.
25
This was the crux of the dispute between the parties.
UNITED STATES V. COLLAZO 45
Gall v. United States, 552 U.S. 38, 49 (2007). But we do not
defer to the Guidelines when interpreting criminal statutes.
See United States v. Morales, 590 F.3d 1049, 1052 (9th Cir.
2010) (“Of course, the [Sentencing] Commission can’t tell
federal courts how to interpret statutes.”). Therefore, while
the relevant sections of the Guidelines guide a court’s post-
conviction sentencing determinations, we may not rely on
them when determining what is required for a conviction and
statutory sentence.
Under the Guidelines, after a defendant has been
convicted for violating § 846 or § 841, a district court must
refer to Chapter Two, Part D of the Guidelines, “Offenses
involving Drugs.” See U.S.S.G. § 2D (2018). For a drug
trafficking offense, including conspiracy to commit such an
offense, the Guidelines specifies more than one base offense
level (depending on drug type and quantity, among other
things) and identifies several specific offense characteristics
that can affect the offense level.26 See U.S.S.G. § 2D1.1
(2018). To determine the appropriate offense level for any
given defendant, the Guidelines directs courts to consider
certain “relevant conduct.” See U.S.S.G. §§ 1B1.2(b) &
1B1.3 (2018). The Guidelines defines the term “relevant
conduct” to mean:
in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in
concert with others, whether or not charged as
26
For example, an offense level is increased by two levels when “the
object of the offense was the distribution of a controlled substance in a
prison, correctional facility, or detention facility.” U.S.S.G.§ 2D1.1(b)(4)
(2018).
46 UNITED STATES V. COLLAZO
a conspiracy), all acts and omissions of others
that were—
(i) within the scope of the jointly
undertaken criminal activity,
(ii) in furtherance of that criminal activity,
and
(iii) reasonably foreseeable in
connection with that criminal activity;
that occurred during the commission of the
offense of conviction, in preparation for that
offense, or in the course of attempting to
avoid detection or responsibility for that
offense.
U.S.S.G. § 1B1.3(a)(1)(B) (2018).27 Although § 1B1.3(a)
limits a defendant’s accountability for sentencing purposes,
the application notes to § 1B1.3 acknowledge that the
Guidelines does not purport to establish standards of criminal
liability. See U.S.S.G. § 1B1.3, cmt. n.1 (2018).
27
The meaning of the term “relevant conduct” in the context of a
jointly undertaken criminal activity has changed over the years. For
example, in 1991, the term “relevant conduct” included “all acts and
omissions . . . for which the defendant would be otherwise accountable,”
U.S.S.G. § 1B1.3(a)(1) (1991), and the application notes explained that
the “[c]onduct for which the defendant ‘would be otherwise accountable’
. . . includes conduct of others in furtherance of the execution of the
jointly-undertaken criminal activity that was reasonably foreseeable by the
defendant,” U.S.S.G. § 1B1.3, cmt. n.1 (1991). The Guidelines did not
include the “within the scope” requirement until 2015. See U.S.S.G.
§ 1B1.3(a)(1)(B) (2015).
UNITED STATES V. COLLAZO 47
Under the “relevant conduct” standard, a defendant’s
offense level is determined based on the conduct of
coconspirators only if the conduct falls “within the scope of
the jointly undertaken criminal activity,” is committed “in
furtherance of that criminal activity,” and is “reasonably
foreseeable in connection with that criminal activity.”28
U.S.S.G. § 1B1.3, cmt. n.3(A) (2018). The Guidelines
apparently borrowed this standard from Pinkerton, which
limits a defendant’s liability for substantive offenses
committed by coconspirators to include only those acts that
were “done in furtherance of the conspiracy,” fell “within the
scope of the unlawful project,” and were “part of the
ramifications of the plan” which could be “reasonably
foreseen as a necessary or natural consequence of the
unlawful agreement.” Pinkerton, 328 U.S. at 647–48. But
Pinkerton clearly distinguishes between conspiracy and a
substantive offense, see 328 U.S. at 643, while the Guidelines
does not. Rather, the Guidelines adopts Pinkerton’s rule of
coconspirator liability and applies it “in the case of a jointly
undertaken criminal activity . . . whether or not charged as a
conspiracy.” U.S.S.G. § 1B1.3(a)(1)(B) (2018); see also
U.S.S.G. § 1B1.3, cmt. n.1 (1991) (same).
Perhaps due to the fact that Congress originally made the
Guidelines “mandatory and binding on all judges,” United
States v. Booker, 543 U.S. 220, 233 (2005), we failed to make
a distinction between the Guidelines and the sentencing
factors set forth in § 841(b). The misstep dates back to
United States v. Becerra, which involved a challenge to the
district court’s imposition of 20-year sentences on two
28
Such a sentencing determination must be supported by a
preponderance of the evidence. See United States v. Perez, 962 F.3d 420,
448 (9th Cir. 2020).
48 UNITED STATES V. COLLAZO
defendants who had been part of a conspiracy to sell
narcotics. See 992 F.2d 960, 966 (9th Cir. 1993). The
defendants argued that the sentence was erroneous because
the transaction, which had involved 25 kilograms of cocaine,
was neither reasonably foreseeable nor within the scope of
the conspiracy. Id. Relying on the 1991 version of the
Guidelines, which provided that “each conspirator may be
sentenced only for the quantity of drugs that he reasonably
foresaw would be distributed or that fell within the scope of
his own agreement with his co-conspirators,” Becerra upheld
one defendant’s sentence and reversed the other’s. Id. at
966–67. Becerra noted, in a footnote, that this mandatory
standard would apply with equal force to 21 U.S.C. § 841(b).
See id. at 967 n.2 (“We see no reason why sentencing under
the statutory mandatory minimums should differ [from
sentencing under the Guidelines, because the statutory
minimums] are, in essence, part of the Guidelines scheme.”).
Following Becerra, we interpreted § 841 as if it directly
incorporated the standard adopted by the Guidelines. See
United States v. Banuelos, 322 F.3d 700, 704 (9th Cir. 2003).
Banuelos held that in order to subject a conspirator to a
mandatory minimum or statutory maximum sentence under
§ 841(b), the type and quantity of the substance involved in
the conspiracy must either have fallen “within the scope of
the defendant’s agreement with his coconspirators” or have
been “reasonably foreseeable to the defendant.” Id.
Our error in Becerra and Banuelos was the failure to
recognize that the rule of coconspirator liability for
substantive offenses in Pinkerton, which was incorporated
into the Guidelines and applied regardless of whether the
charge was conspiracy or a substantive offense, does not
apply to the liability determination for a § 846 conspiracy
offense. As a result of this error, our cases mistakenly
UNITED STATES V. COLLAZO 49
focused on the question whether we should adjust our
interpretation of § 846 and § 841(b) in accordance with the
Guidelines’ shifting formulation, rather than whether that
formulation is applicable at all. See United States v. Torres,
869 F.3d 1089, 1095–1100 (9th Cir. 2017) (Ikuta, J., specially
concurring).
We now overrule Becerra and its progeny to the extent
they depart from our decision today. Because Pinkerton
addresses when a defendant can be liable for substantive
offenses committed by coconspirators, it is irrelevant to a
defendant’s liability for conspiracy. To the extent § 1B1.3 or
other applicable Guidelines provisions incorporate Pinkerton,
they cannot guide our statutory analysis when the defendants
are charged only with conspiracy.
In reaching this conclusion, we join the well reasoned
opinion of the Sixth Circuit, which is grounded in the text of
the statute. See United States v. Robinson, 547 F.3d 632 (6th
Cir. 2008). We note our departure from the other circuits,
which have largely made errors that echo our own.29 Some
circuits rely on Pinkerton without acknowledging the
29
See United States v. Pizarro, 772 F.3d 284 (1st Cir. 2014); United
States v. Martinez, 987 F.2d 920 (2d Cir. 1993); United States v. Phillips,
349 F.3d 138 (3d Cir. 2003), vacated on other grounds, Barbour v. United
States, 543 U.S. 1102 (2005); United States v. Collins, 415 F.3d 304 (4th
Cir. 2005); United States v. Haines, 803 F.3d 713 (5th Cir. 2015); United
States v. Seymour, 519 F.3d 700 (7th Cir. 2008); United States v. Littrell,
439 F.3d 875 (8th Cir. 2006); United States v. Ellis, 868 F.3d 1155 (10th
Cir. 2017); United States v. Stoddard, 892 F.3d 1203 (D.C. Cir. 2018).
50 UNITED STATES V. COLLAZO
difference between conspiracy and the substantive offense.30
See, e.g., Stoddard, 892 F.3d at 1221. Other circuits rely on
the Guidelines. See, e.g., Haines, 803 F.3d at 740; United
States v. Irvin, 2 F.3d 72, 77 (4th Cir. 1993). And it appears
that two circuits have adopted one approach for mandatory
minimum sentences and a different approach for statutory
maximum sentences. See Pizarro, 772 F.3d at 292–93;
Haines, 803 F.3d at 741–42. For the reasons explained
above, we are not persuaded by the reasoning of those circuits
that have relied on Pinkerton, the Guidelines, or both.
Even though the Guidelines does not impact our
interpretation of the statute, the Guidelines works with the
statute to ensure that a defendant is not exposed to unlimited
liability. Once a defendant is convicted and the statutory
sentencing range is established by the jury’s factual findings,
the district court must follow the Guidelines, which will
establish a fair sentence based on an individualized
assessment of accountability. “Under the Guidelines each
conspirator, for sentencing purposes, is to be judged not on
the distribution made by the entire conspiracy but on the basis
of the quantity of drugs which he reasonably foresaw or
which fell within ‘the scope’ of his particular agreement with
the conspirators.” United States v. Petty, 992 F.2d 887, 890
(9th Cir. 1993).
30
The Fourth Circuit concedes that “[t]he principles outlined in
Pinkerton” do not apply to conspiracy under § 846, but it nevertheless
requires a jury to be instructed in Pinkerton principles when determining
the substance type and quantity involved in a conspiracy. Collins,
415 F.3d at 313, 314.
UNITED STATES V. COLLAZO 51
V
We now apply our approach to the case on appeal. Each
defendant was indicted for conspiracy under § 846 to
distribute controlled substances in violation of § 841(a)(1).
At trial, the jury was instructed that if it found the
defendant guilty of the conspiracy charge, it had to determine
“whether the government proved beyond a reasonable doubt
that the amount of [the specified drug] that was reasonably
foreseeable to him or fell within the scope of his particular
agreement equaled or exceeded” a specified amount.
Although the district court was not at fault in attempting to
rely on our confusing precedent, we now conclude that this
instruction was erroneous. As we have explained, a
defendant convicted of conspiracy under § 846 is subject to
a penalty under § 841(b)(1)(A)–(B) if the government has
proven beyond a reasonable doubt that the underlying
§ 841(a)(1) offense involved the drug type and quantity set
forth in § 841(b)(1)(A)–(B). The government does not have
to prove that the defendant had any knowledge or intent with
respect to those facts.
A jury instruction misstating the law is subject to
harmless error review. United States v. Conti, 804 F.3d 977,
980 (9th Cir. 2015). An erroneous jury instruction will be
deemed harmless if the “reviewing court concludes beyond a
reasonable doubt that the omitted [or misstated] element was
uncontested and supported by overwhelming evidence, such
that the jury verdict would have been the same absent the
error.” Neder v. United States, 527 U.S. 1, 17 (1999). In this
case, the erroneous jury instructions could amount to
harmless error if there was overwhelming evidence that each
52 UNITED STATES V. COLLAZO
defendant entered into an agreement involving the requisite
drug type and quantity.
To safeguard a criminal defendant’s Sixth Amendment
guarantee to a jury trial, the reviewing court must “conduct a
thorough examination of the record.” Id. at 19. Given the
numerous issues raised on appeal and the extensive record
from the ten-day jury trial, we find it appropriate to return
this case to the three-judge panel to reconsider both the
harmless error issue and the balance of the issues raised by
the parties in light of this opinion, and to enter an appropriate
judgment.31 See, e.g., Gonzalez Batoon v. INS, 791 F.2d 681,
686 (9th Cir. 1986) (en banc).
REMANDED to the three-judge panel.
W. FLETCHER, Circuit Judge, with whom THOMAS, Chief
Circuit Judge, and NGUYEN, WATFORD, and HURWITZ,
Circuit Judges, join, dissenting:
Under 21 U.S.C. § 841(a)(1), it is illegal for a person
“knowingly or intentionally” to “possess with intent to . . .
distribute . . . a controlled substance.” It has long been the
law in this circuit that “a defendant who has knowledge that
he possesses a controlled substance may have the state of
mind necessary for conviction even if he does not know
31
We also leave for the panel the issue of whether the erroneous jury
instruction should be reviewed for plain error with respect to Delgado-
Vidaca and Ballesteros, given that Delgado-Vidaca did not expressly join
the objection at trial, and that Ballesteros did not raise the issue on appeal
in either his opening or reply brief.
UNITED STATES V. COLLAZO 53
which controlled substance he possesses.” United States v.
Jewell, 532 F.2d 697, 698 (9th Cir. 1976) (en banc); see also
McFadden v. United States, 576 U.S. 186, 192 (2015) (“The
ordinary meaning of § 841(a) . . . requires a defendant to
know only that the substance he is dealing with is some
unspecified substance listed on the federal drug schedules.”).
In general, if the offense involves a Schedule I or Schedule II
controlled substance (absent aggravating circumstances not
at issue here), the defendant may upon conviction receive a
sentence of “not more than twenty years.” 21 U.S.C.
§ 841(b)(1)(C). In such a case, there is no mandatory
minimum sentence. Id.
For eight specified Schedule I and II controlled
substances, however, §§ 841(b)(1)(A) and (b)(1)(B) provide
for mandatory minimum sentences that differ depending on
the particular substance and quantity. For example, if a
defendant distributes 50 or more grams of methamphetamine,
the mandatory minimum sentence is ten years and the
permissible maximum sentence is life. See id.
§ 841(b)(1)(A)(viii). If a defendant distributes 100 or more
grams of a substance containing a detectable amount of
heroin, the mandatory minimum sentence is five years and the
permissible maximum sentence is forty years. See id.
§ 841(b)(1)(B)(i). If death or bodily injury results from the
distribution, the mandatory minimum sentence under both
§§ 841(b)(1)(A) and (b)(1)(B) is twenty years.
The defendants in this case were charged with conspiring,
in violation of 21 U.S.C. § 846, to distribute 50 grams or
more of methamphetamine and 100 grams or more of a
substance containing a detectable amount of heroin, in
violation of §§ 841(a)(1), 841(b)(1)(A)(viii) and (b)(1)(B)(i).
According to the majority, once the government proves
54 UNITED STATES V. COLLAZO
beyond a reasonable doubt that a defendant knowingly or
intentionally distributed a controlled substance, and that
substance turns out to be one of the eight controlled
substances in an amount specified by §§ 841(b)(1)(A) and
(b)(1)(B), a mandatory minimum and enhanced maximum
sentence automatically apply. The sentences for a violation
of § 841(a)(1) are thus dramatically and mandatorily
increased in the absence of any mens rea as to drug type and
amount. I respectfully disagree.
Any crime whose penalty is increased by law based on a
specified fact is an “aggravated crime.” Alleyne v. United
States, 570 U.S. 90, 113 (2013). “Any fact that, by law,
increases the penalty for a crime is an ‘element’” of the
crime. Id. at 103; see also Apprendi v. New Jersey, 530 U.S.
466 (2000). Any such fact must be submitted to the jury and
proved beyond a reasonable doubt. Alleyne, 570 U.S. at 116.
There is a strong presumption that Congress intends to
require a culpable mens rea as to every element of a crime.
See, e.g., Rehaif v. United States, 139 S. Ct. 2191, 2195
(2019); Flores-Figueroa v. United States, 556 U.S. 646, 650
(2009). Applying that presumption, I would hold that when
the government seeks enhanced penalties under
§§ 841(b)(1)(A) or (b)(1)(B)—specifically, the mandatory
minimums and increased statutory maximums that do not
exist for Schedule I or II drug violations charged under
§ 841(b)(1)(C)—it must prove the defendant “knowingly or
intentionally” distributed the actual controlled substance and
quantity charged under §§ 841(b)(1)(A) or (b)(1)(B).
I. Presumption of Mens Rea
“[T]he existence of a mens rea is the rule of, rather than
the exception to, the principles of Anglo-American criminal
UNITED STATES V. COLLAZO 55
jurisprudence.” United States v. United States Gypsum Co.,
438 U.S. 422, 436 (1978) (internal quotation marks omitted).
William Blackstone wrote that it is “absurd” to apply the
same punishment to “crimes of different malignity.”
4 William Blackstone, Commentaries on the Laws of England
17 (1769). In the leading nineteenth-century treatise, Joel
Prentiss Bishop wrote that punishment requires concurrence
between mens rea and the wrong inflicted because “the evil
intended is the measure of a man’s desert of punishment.”
1 Joel Prentiss Bishop, Commentaries on the Criminal Law
§ 334 (7th ed. 1882). Justice Robert Jackson wrote in
Morissette v. United States that the relation between mens rea
and punishment is “almost as instinctive as the child’s
familiar exculpatory ‘But I didn’t mean to.’” 342 U.S. 246,
251 (1952).
The presumption of mens rea reinforces other
foundational principles of criminal law. First, a person’s
mistake of fact ordinarily mitigates guilt and resulting
punishment. As Justice Jackson wrote, the law often
recognizes “good faith or blameless intent as a defense,
partial defense, or as an element to be considered in
mitigation of punishment.” Id. at 265. Second, a person
should have fair notice as to the likely consequences of
voluntary acts. The terms in a penal statute defining an
offense “must be sufficiently explicit to inform those who are
subject to it what conduct on their part will render them liable
to its penalties.” Connally v. Gen. Const. Co., 269 U.S. 385,
391 (1926).
The Supreme Court has never insisted that Congress
clearly state its intention to require mens rea as part of the
definition of a crime. Indeed, in one case the Court relied on
the presumption to conclude that a mens rea is required
56 UNITED STATES V. COLLAZO
despite the complete absence of mens rea language anywhere
in the statute. See Staples v. United States, 511 U.S. 600, 619
(1994). It necessarily follows that the presumption applies
“with equal or greater force” when Congress includes an
explicit mens rea provision. Rehaif, 139 S. Ct. at 2195. A
severe criminal penalty makes the already strong presumption
even stronger, for the severity of the penalty is a “significant
consideration” in determining whether Congress intended to
require a mens rea. Staples, 511 U.S. at 616; see also United
States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994)
(pointing to the harsh penalty as a reason to apply the
presumption). The presumption is overridden only if
Congress makes plain that it intends to forego a mens rea
requirement. Rehaif, 139 S. Ct. at 2195.
There are two exceptions to the presumption of mens rea,
neither of which applies in the case before us. First, there is
an exception for “public welfare” offenses. See id. at 2197.
The public welfare exception applies only to statutes that
provide for “light penalties such as fines or short jail
sentences,” Staples, 511 U.S. at 616, or where “conviction
does no grave damage to an offender’s reputation,”
Morissette, 246 U.S. at 342. Second, mens rea is not required
for a jurisdictional element of a crime, such as a requirement
that a firearm traveled in interstate commerce, because such
elements have no bearing on the wrongfulness of a
defendant’s conduct. Rehaif, 139 S. Ct. at 2196.
There is a strong presumption that a mens rea requirement
exists for all elements of a crime. See id. at 2195 (citing
Model Penal Code § 2.02(4), (Am. L. Inst. 1985) (when a
statute prescribes a level of culpability, it applies to “all the
material elements of the offense, unless a contrary purpose
UNITED STATES V. COLLAZO 57
plainly appears”)). In two cases, the Supreme Court has
explained what constitutes an “element.”
In Apprendi, the Court held that a fact underlying a
sentencing enhancement beyond the statutory maximum is an
element of the crime, disagreeing with New Jersey’s
contention that a fact resulting in a higher sentence was a
mere “sentencing factor.” 530 U.S. at 492. Rather, the Court
explained, the question of whether a fact is an element of the
crime is “one not of form, but of effect.” Id. at 494. Courts
must ask whether the fact exposes the defendant to greater
punishment. Id.
In Alleyne, the Court applied Apprendi to a statute
describing a “core crime” and prescribing escalating criminal
penalties depending on particular facts specified in the
statute. See 570 U.S. at 111–16. The core crime was using
or carrying a firearm in relation to a crime of violence. A
defendant who committed the core crime, without more, was
subject to a 5-year mandatory minimum. A defendant who
“brandishe[d]” the firearm in committing the core crime was
subject to a 7-year mandatory minimum. See 18 U.S.C.
§ 924(c)(1)(A)(i)–(ii). The Court wrote that “facts increasing
the legally prescribed floor aggravate the punishment” and
“heighten[] the loss of liberty associated with the crime.”
Alleyne, 570 U.S. at 113 (emphasis in original). “[T]he core
crime and the fact triggering the mandatory minimum
sentence together constitute a new, aggravated crime.” Id.
According to the Court, “Any fact that, by law, increases the
penalty for a crime is an ‘element.’” Id. at 103. Any such
fact must be submitted to the jury and proved beyond a
reasonable doubt. Id. at 116.
58 UNITED STATES V. COLLAZO
To give effect to the presumption of mens rea, the Court
has been “reluctan[t] to simply follow the most grammatical
reading of [a] statute.” X-Citement Video, 513 U.S. at 70. X-
Citement Video is a prime example of ignoring the niceties of
grammar. The statute at issue provided:
(a) Any person who—
(1) knowingly transports or ships using
any means or facility of interstate or
foreign commerce or in or affecting
interstate or foreign commerce by any
means including by computer or mails,
any visual depiction, if—
(A) the producing of such visual
depiction involves the use of a minor
engaging in sexually explicit conduct;
and
(B) such visual depiction is of such
conduct;
...
shall be punished as provided in
subsection (b) of this section.
18 U.S.C. § 2252(a). The question was whether the mens rea
of “knowingly” required that defendants not only knew that
they were transporting or shipping a “visual depiction” of
“sexually explicit conduct,” but also required that they knew
that the depiction “involve[d] the use of a minor engaging in
[that] conduct.” Id.
UNITED STATES V. COLLAZO 59
Our court had held in X-Citement Video that the mens rea
requirement applied only to the act of transporting the
depiction of sexually explicit conduct. United States v. X-
Citement Video, Inc., 982 F.2d 1285, 1289–90 (9th Cir.
1992). We had held that mens rea requirement did not
require knowledge that the depiction involved the use of a
minor. See id. at 1292 (stating that applying mens rea to this
element would be “judicial rewriting of [the] statute”). The
Supreme Court reversed. In an opinion by Chief Justice
Rehnquist, the Court held that the knowledge mens rea
applied to both elements of the crime. The Court held that
“knowingly” modified the phrase “involves the use of a
minor,” even though the key phrase was not the phrase
directly modified by the adverb. X-Citement Video, 513 U.S.
at 68–70.
Further, the Supreme Court has allowed a considerable
distance between the words specifying the mens rea and the
words describing the element of the crime. In X-Citement
Video, the adverb “knowingly” was separated from “involves
the use of a minor” by twenty-six words. In Rehaif, the word
specifying the mens rea and the words specifying elements of
the crime were in entirely different sections of Title 18.
Section 924(a)(2) provided a penalty of up to 10 years’
imprisonment for “knowingly” engaging in acts with several
different factual predicates. The acts were identified in
§ 924(a)(2) only by cross-references to subsections in § 922.
Among the factual predicates in § 922(g) were two relevant
to the defendant: (1) that the defendant possessed a firearm,
and (2) that the defendant was an alien unlawfully in the
United States. The question was whether the government
needed to prove that a defendant charged with violating
§ 924(a)(2) knew both that he possessed a firearm and that his
status at the time of possession was as an alien unlawfully in
60 UNITED STATES V. COLLAZO
the country. The Court held that Congress intended mens rea
as to all material elements of the crime, even those in the
separate section of the statute. Rehaif, 139 S. Ct. at 2196.
II. Aggravated Crimes under §§ 841(b)(1)(A) and
841(b)(1)(B)
Subsection 841(a)(1) criminalizes conduct with respect to
a wide range of controlled substances and quantities, with a
correspondingly wide range of penalties, as specified in
§ 841(b)(1). Subsection 841(a)(1) provides that “it shall be
unlawful for any person knowingly or intentionally to
manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute or dispense, a controlled substance.”
(Emphasis added.) The general punishment for § 841(a)(1)
violations involving Schedule I and II substances is up to
twenty years in prison, with no mandatory minimum
sentence. 21 U.S.C. § 841(b)(1)(C).
However, §§ 841(b)(1)(A) and (b)(1)(B), when combined
with § 841(a)(1), describe “aggravated crimes” under Alleyne,
570 U.S. at 113. When a forbidden act with respect to one of
eight specific Schedule I or II controlled substances is
charged under §§ 841(b)(1)(A) or (b)(1)(B), mandatory
minimum and higher maximum sentences apply. Section
841(b)(1)(A) provides a “term of imprisonment” of “not . . .
less than 10 years or more than life . . .” for eight controlled
substances meeting or exceeding specified quantities.
Subsection 841(b)(1)(B) provides for an imprisonment term
of “not . . . less than 5 years and not more than 40 years . . .”
for the same eight substances in lesser quantities. If death or
bodily injury results from the manufacture, distribution or
dispensation, the mandatory minimum sentence under both
§§ 841(b)(1)(A) and (b)(1)(B) is increased to twenty years.
UNITED STATES V. COLLAZO 61
We are concerned in this case with two of the controlled
substances and quantities listed in §§ 841(b)(1)(A) and
(b)(1)(B). Defendants were charged with conspiring to
distribute controlled substances and quantities listed in
§ 841(b)(1)(A)(viii) (methamphetamine, a Schedule II
substance) and § 841(b)(1)(B)(i) (heroin, a Schedule I
substance).
This should be an easy case. The structure of § 841 is
clear and straightforward. Subsection 841(a)(1) prohibits
certain knowing or intentional acts with respect to controlled
substances. Subsections 841(b)(1)(A) and (b)(1)(B),
immediately following, prescribe mandatory enhanced
penalties for eight specified Schedule I and II controlled
substances in specified quantities. Under § 841(b)(1)(C),
unless death or serious bodily injury results, no mandatory
minimum applies to violations of § 841(a)(1). But under
§ 841(b)(1)(A)(viii), a sentence of not less than 10 years and
no more than life applies to an offense involving 50 grams or
more of methamphetamine. Under § 841(b)(1)(B)(i), a
sentence of not less than five years and no more than 40 years
applies to an offense involving between 100 grams or more
of a substance containing a detectable amount of heroin.
Under Alleyne, the specific controlled substance and its
quantity are elements of the aggravated crimes created by the
combination of § 841(a)(1) and §§ 841(b)(1)(A) and
(b)(1)(B). Even without the presumption that mens rea
applies to all elements of a crime, I would conclude that a
plain reading of § 841 indicates that Congress intended to
require the government to prove knowledge or intent with
respect to the controlled substances and quantities specified
in §§ 841(b)(1)(A) and (b)(1)(B). But the presumption
applies, and it reinforces the conclusion I would reach
62 UNITED STATES V. COLLAZO
independently. Indeed, the presumption applies with
particular force, given the severity of the penalties.
Despite the explicit mens rea requirement in § 841(a)(1),
despite the proximity of § 841(a)(1) to §§ 841(b)(1)(A) and
(b)(1)(B), despite the fact that type and quantity of the
controlled substances in §§ 841(b)(1)(A) and (b)(1)(B) are
elements of the crime, and despite the mandatory nature and
severity of the penalties under §§ 841(b)(1)(A) and (b)(1)(B),
the majority concludes that § 841 requires that the
government prove knowledge or intent only with respect to
a controlled substance—indeed, only with respect to any
controlled substance, not limited to the eight substances listed
in §§ 841(b)(1)(A) and (b)(1)(B). I respectfully disagree.
The majority makes several arguments in support of its
conclusion. I find none of them persuasive.
First, the majority writes that Ҥ 841(b)(1), unlike
§ 841(a), is silent as to any mens rea requirement.” Maj. Op.
at 22. It is of course true that §§ 841(b)(1)(A) and (b)(1)(B)
do not contain a mens rea requirement. The requirement is in
§ 841(a)(1). But the “silence” to which the majority refers is
a far cry from the true silence in Staples, where the statute
had no mens rea requirement whatsoever. Yet the Court in
Staples, relying on the presumption of mens rea, held that the
statute required mens rea on the part of the defendant.
Staples, 511 U.S. at 619.
Second, the majority writes, relying on “ordinary English
grammar,” that “[t]here is no natural or ordinary way to read
the intent requirement in § 841(a)(1) as modifying the drug
types and quantities in § 841(b).” Maj. Op. at 30. But the
question before us is not centrally a grammatical question, to
UNITED STATES V. COLLAZO 63
be answered as if we were diagramming a sentence. The
question is a broader interpretive question. It is whether we
should infer Congressional intent to require mens rea when
one subsection of the statute specifies a mens rea for criminal
violations, including violations carrying mandatory sentences,
and the immediately following subsections lists the controlled
substances and quantities that require those mandatory
sentences. If that is the question, as it surely must be, it is
easy to read the statute in a “natural or ordinary way” to apply
the mens rea requirement contained in one subsection to the
criminal behavior specified in the immediately following
subsections that impose mandatory sentences.
Third, the majority argues that the “knowingly or
intentionally” mens rea in § 841(a)(1) cannot apply to
controlled substances and quantities in §§ 841(b)(1)(A) and
(b)(1)(B) because Congress explicitly provided for a mens rea
of “knowingly or intentionally” in § 841(b)(6). The majority
correctly points out “that Congress knew how to require proof
of mens rea with respect to the predicate facts for sentences
under § 841(b),” and that it did not explicitly provide that the
mens rea requirement of “knowingly or intentionally” applied
to crimes specified in § 841(b)(1)(A)–(B). Maj. Op. at 31. It
incorrectly concludes, however, that if the “knowingly or
intentionally” mens rea requirement contained in § 841(a)(1)
applies to acts described in §§ 841(b)(1)(A) and (b)(1)(B), the
identical mens rea specified in § 841(b)(6) is “surplusage.”
Id. According to the majority, “this redundancy fatally
undermines the dissent’s position.” Id.
The majority misunderstands § 841(b)(6). There are two
criminal acts specified in § 841(b)(6). It provides, “Any
person who [1] violates subsection (a) . . . , and
[2] knowingly or intentionally uses a poison, chemical or
64 UNITED STATES V. COLLAZO
other hazardous substance on Federal land . . . shall be fined
. . . or imprisoned not more than five years, or both.”
(Emphasis and bracketed numbers added.) The first criminal
act is a violation of § 841(a). As we know, § 841(a) already
contains the mens rea of “knowingly or intentionally,” and it
forbids manufacturing, distributing or dispensing controlled
substances. The second criminal act is poisoning federal
lands. It is a separate criminal act that is not forbidden by
§ 841(a). Because it is a separate criminal act as to which the
mens rea specified in § 841(a) does not apply, Congress
separately specified the mens rea of “knowingly or
intentionally” for that separate act. Far from supporting the
majority’s conclusion, § 841(b)(6) is inconsistent with it. For
the first crime specified in § 841(b)(6), the mens rea of
“knowingly or intentionally” is already provided in
§ 841(a)(1). For the second crime, mens rea is not provided
by § 841(a)(1). Section § 841(b)(6) therefore explicitly
provides that mens rea, in words that precisely replicate the
mens rea in § 841(a)(1). There is no surplusage. Rather,
there is a confirmation that the mens rea specified in
§ 841(a)(1) can apply to the crimes and mandatory penalties
specified in § 841(b)(1).
Fourth, the majority suggests that the presumption of
mens rea should apply only to acts that, absent the statute, are
“entirely innocent.” Maj. Op. at 33 (quoting Rehaif, 139 S.
Ct. at 2197). It writes, “The presumption that Congress
intended the defendant to possess a culpable mental state as
to ‘each of the statutory elements that criminalize otherwise
innocent conduct’ is particularly appropriate when a different
reading would have the effect of criminalizing ‘a broad range
of apparently innocent conduct.’” Id. at 27–28 (internal
citations omitted). The Supreme Court has never held that
the presumption of mens rea protects only the entirely
UNITED STATES V. COLLAZO 65
innocent. Indeed, as Justice Kavanaugh wrote while a judge
on the D.C. Circuit, it would be “illogical in the extreme” to
limit the presumption of mens rea in this way. United States
v. Burwell, 690 F.3d 500, 529 (D.C. Cir. 2012) (en banc)
(Kavanaugh, J., dissenting).
The government has argued to the Court that the
presumption of mens rea protects only the innocent, and its
argument has been rejected. See Brief for the United States
at 33–38, Flores-Figueroa v. United States, 556 U.S. 646
(2009) (No. 08-108), 2009 WL 191837. The government
argued in Flores-Figueroa that the word “knowingly” in
18 U.S.C. § 1028A(a)(1) did not apply to a certain element of
an aggravated identity theft crime because there was no risk
of “criminalization of any ‘apparently innocent conduct.’” Id.
at 34 (quoting Liparota v. United States, 471 U.S. 419, 426
(1985)). But the Court refused to adopt that view.
I am, of course, aware that cases previously decided by
our court support the majority’s conclusion. See, e.g., United
States v. Soto-Zuniga, 837 F.3d 992 (9th Cir. 2016); United
States v. Jefferson, 791 F.3d 1013 (9th Cir. 2015). I believe
that these cases were wrongly decided. See Jefferson,
791 F.3d at 1019 (Fletcher, J., concurring). In recent years,
the Supreme Court has paid increasing attention to statutory
sentencing schemes. See Alleyne, 570 U.S. at 103; Harris v.
United States, 536 U.S. 545 (2002), overruled by Alleyne,
570 U.S. at 103; Apprendi, 530 U.S. 466. Alleyne reflects a
broad concern about the unfairness of sentencing schemes in
which the facts that are legally essential to the punishment
need not be found beyond a reasonable doubt. See Alleyne,
570 U.S. at 112 (“[I]f ‘a statute prescribes a particular
punishment to be inflicted on those who commit it under
special circumstances which it mentions, or with particular
66 UNITED STATES V. COLLAZO
aggravations,’ then those special circumstances must be
specified in the indictment[.]” (quoting 1 Joel Prentiss
Bishop, Criminal Procedure § 598, at 360–61 (2d ed. 1872)).
It is a small step from Alleyne to the conclusion I would
reach in this case. The same concern about unfairness that
motivated the Court in Alleyne should lead us to the
conclusion that the mens rea requirement specified in
§ 841(a)(1) applies to the acts and mandatory penalties
specified in §§ 841(b)(1)(A) and (b)(1)(B). Congress did not
intend in § 841 to impose mandatory sentences of five, ten
and twenty years, and maximum sentences of life, based on
mistakes of fact and unintentional acts.