United States v. Jefferson

• Decision Date: 26 June 2015
• Docket Number: No. 13–50647.,13–50647.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. George JEFFERSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

791 F.3d 1013

UNITED STATES of America, Plaintiff–Appellee

v.George JEFFERSON, Defendant–Appellant.

No. 13–50647.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 8, 2015.

Filed June 26, 2015.

Kara Hartzler (argued), Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant–Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, and Benjamin J. Katz (argued), Special Assistant United States Attorney, San Diego, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. 3:13–cr–01378–LAB–1.

Before: ALEX KOZINSKI, KIM McLANE WARDLAW, and WILLIAM A. FLETCHER, Circuit Judges.

Opinion by Judge WARDLAW

; Concurrence by Judge W. FLETCHER.

OPINION

WARDLAW, Circuit Judge:

George Jefferson appeals his ten-year mandatory minimum sentence for knowingly and intentionally importing a controlled substance into the United States in violation of 21 U.S.C. §§ 952 and 960. We reject Jefferson's argument that recent Supreme Court authority requires the government to prove that the defendant knew the specific type and quantity of the drugs he imported in order to trigger the ten-year mandatory minimum under 21 U.S.C. § 960(b)(1)(H). Accordingly, we affirm.

I.

Jefferson entered a guilty plea to one count of knowingly and intentionally importing 4.65 kilograms of a mixture containing methamphetamine into the United States. Jefferson claims that, at the time he crossed the border, he thought the substance he was transporting was marijuana, not methamphetamine, and that he did not know how much of the illegal substance was in his truck. At sentencing he contended, among other things,¹ that under the Supreme Court's decisions in Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) and Flores–Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009), knowledge of drug type and quantity were elements of the offense, and that, therefore, the government had to prove he knew the exact drug type and quantity he was transporting for the 10–year mandatory minimum under 21 U.S.C. § 960(b)(1)(H) to apply. The district court concluded that Alleyne and Flores–Figueroa did not abrogate long-established Ninth Circuit precedent that the government is not required to prove that a defendant knew the type or quantity of the controlled substance he imported to be found guilty under § 960. The district court imposed a sentence of 144 months of incarceration, followed by 10 years of supervised release.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's interpretation of a statute de novo and its application of a statute to the facts for abuse of discretion. United States v. Yazzie, 743 F.3d 1278, 1288 (9th Cir.), cert. denied, ––– U.S. ––––, 135 S.Ct. 227, 190 L.Ed.2d 172 (2014).

III.

It is “unlawful ... to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I” of the Controlled Substances Act. 21 U.S.C. § 952(a). Methamphetamine is a schedule II controlled substance. 21 C.F.R. § 1308.12(a), (d)(2). “Any person who ... knowingly or intentionally imports or exports a controlled substance ... shall be punished as provided in [21 U.S.C. § 960(b) ].” 21 U.S.C. § 960(a) (citing 21 U.S.C. § 952 ).

21 U.S.C. § 960(b), entitled “Penalties,” prescribes varying minimum and maximum terms of imprisonment and fines depending on the type and quantity of controlled substance a person imports. For example, a person convicted of importing 500 grams or more of a mixture containing methamphetamine shall be sentenced to a minimum of 10 years imprisonment and a maximum of life imprisonment. Id. § 960(b)(1)(H). A person convicted of importing less than 50 kilograms of marijuana faces no mandatory minimum, and shall be sentenced to a maximum of 5 years imprisonment, a fine not exceeding $250,000, or both. Id. § 960(b)(4).

We have consistently held that a defendant can be convicted under § 960 if he believed he imported or exported some controlled substance. See United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) ; United States v. Ramirez–Ramirez, 875 F.2d 772, 774 (9th Cir.1989) ; United States v. Rea, 532 F.2d 147, 149 (9th Cir.1976) (per curiam). The government is not required to prove that the defendant knew the type or quantity of the controlled substance he imported to obtain a conviction under § 960(a), Carranza, 289 F.3d at 644, or for the penalties under § 960(b) to apply, see United States v. Salazar, 5 F.3d 445, 446 (9th Cir.1993) ; United States v. Lopez–Martinez, 725 F.2d 471, 474–75 (9th Cir.1984). Section 960(a) requires a person to “knowingly or intentionally” import a controlled substance; § 960(b) refers to different types and amounts of controlled substances for sentencing purposes.

A.

Jefferson first argues that this long established precedent was abrogated² by the Supreme Court's decision in Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which held that any fact that increases the mandatory minimum sentence is an “element” of the offense that must be submitted to the jury and found beyond a reasonable doubt. Id. at 2155. The decision extended the rule of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the Court established that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Alleyne Court reasoned that “there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum.” 133 S.Ct. at 2163.

Jefferson correctly notes that Alleyne renders the type and quantity of a controlled substance “elements” of a § 960 offense. Both drug type and quantity can trigger, or increase, a mandatory minimum sentence under § 960(b), and therefore both facts must be proved to a jury beyond a reasonable doubt—or, as here, admitted by the defendant. See Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (holding that facts may be admitted by the defendant “for Apprendi purposes”); United States v. Guerrero–Jasso, 752 F.3d 1186, 1190 (9th Cir.2014) (holding that admissions by the defendant satisfy Apprendi ).³

This does not mean, however, as Jefferson urges, that the “knowingly or intentionally” mens rea standard found in § 960(a) applies to the elements found in § 960(b). Alleyne provides no guidance as to which facts increase mandatory minimum sentences under a given statute. It addressed only who must determine such facts, and which burden of proof applies. See United States v. Montalvo, 331 F.3d 1052, 1061 (9th Cir.2003) (Kozinski, J., concurring) (“Apprendi affects only the identity of the decisionmaker and the burden of proof....”); United States v. Brough, 243 F.3d 1078, 1079 (7th Cir.2001) (“Apprendi ... make[s] the jury the right decisionmaker (unless the defendant elects a bench trial), and the reasonable-doubt standard the proper burden, when a fact raises the maximum lawful punishment.”). Determining which facts increase the mandatory minimum sentence is instead a statute specific inquiry—and Alleyne does not alter our precedent that a defendant's knowledge of the type and quantity of the controlled substance he imports is not such a fact, and, therefore, not an element of the offense.

Nor do two decisions that postdate the district court's ruling—Burrage v. United States, ––– U.S. ––––, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), and Rosemond v. United States, ––– U.S. ––––, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014) —require § 960(a)'s “knowingly or intentionally” standard to be applied to drug type and quantity. The Burrage Court examined a twenty-year mandatory minimum that applies when a defendant “knowingly or intentionally ... distribute[s] ... a controlled substance,” 21 U.S.C. § 841(a), and its use results in “death or serious bodily injury,” id. § 841(b)(1)(C).⁴ See 134 S.Ct. at 885. In summarizing the charged offense, the Court stated that an element was the “knowing or intentional distribution of heroin.” Id. at 887. The Court's use of the word “heroin” instead of “controlled substance” does not clearly signal that a defendant must know the type of drug he imports or distributes. The statute's mens rea standard was not at issue, and the Court's analysis was devoted entirely to the question of causation: whether § 841(b)(1)(C) “applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim's death or injury.” Id. at 885 ; see also 887–92. “It is unlikely in the extreme that the Supreme Court intended by [a] single sentence to overrule sub silentio years of decisional law....” United States v. Fonseca–Caro, 114 F.3d 906, 907 (9th Cir.1997) (per curiam).

In Rosemond, the Court concluded that a defendant charged with aiding and abetting an armed drug sale under 18 U.S.C. §§ 2 and 924(c) must have had “advance knowledge” that one of his confederates would use or carry a gun as part of the crime's commission, because “a state of mind extending to the entire crime” is necessary for conviction. 134 S.Ct. at 1245, 1248–49. The federal aiding and abetting statute, unlike § 960, derives from common law standards of accomplice liability, a fact which was critical to the Court's decision. See id. at 1245. Rosemond says nothing about the mens rea required for the crime of importing a controlled substance, or about mens rea requirements generally.

Our conclusion that Alleyne did not change the mens rea requirement for § 960 is further supported by the Sixth Circuit's decision in United States v. Dado, 759 F.3d 550, 570 (6th Cir.), cert. denied, ...