NOT RECOMMENDED FOR PUBLICATION

File Name: 16a0618n.06

No. 15-6122

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAY GIBSON (#17645-032),

Defendant-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF KENTUCKY

BEFORE: DAUGHTREY, ROGERS, and COOK, Circuit Judges.

ROGERS, Circuit Judge. Ray Gibson pleaded guilty to conspiring to distribute fifty 

grams or more of methamphetamine. See 21 U.S.C. § 846. That crime carries a mandatoryminimum sentence of ten years’ imprisonment. 21 U.S.C. § 841(b)(1)(A)(viii). The district 

court sentenced Gibson to ten years’ imprisonment. In this direct appeal, Gibson challenges his 

sentence, arguing that he never admitted that it was reasonably foreseeable to him in particular 

that the drug conspiracy would involve fifty grams or more of methamphetamine, and that his 

trial counsel’s failure to challenge imposition of the mandatory-minimum sentence was 

constitutionally ineffective assistance. In light of our clear precedents, both arguments fail.

Gibson pleaded guilty to a conspiracy to distribute methamphetamine, where the 

conspiracy “involved” fifty grams or more of methamphetamine. That admission sufficed to 

trigger the ten-year mandatory minimum. The drug conspiracy statute exposes a co-conspirator 
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United States v. Gibson

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to “the same penalties as those prescribed for the offense, the commission of which was the 

object of the . . . conspiracy.” 21 U.S.C. § 846. The substantive drug statute imposes a ten-year 

mandatory minimum to “any person” who “knowingly or intentionally . . . distribute[s] . . . a 

counterfeit substance,” 21 U.S.C. § 841(a)(2), where the distribution “involv[es] . . . 50 grams or 

more of methamphetamine,” 21 U.S.C. § 841(b)(1)(A)(viii). Because Gibson pleaded guilty to 

conspiring to distribute methamphetamine, and admitted that that conspiracy “involved” 

50 grams or more of methamphetamine, the drug conspiracy statute exposes him to the crime of 

distributing fifty grams or more of methamphetamine, together with its ten-year mandatoryminimum sentence. 

While Gibson did not further admit that he reasonably foresaw that the conspiracy would 

involve that drug quantity, he did not need to. In Robinson, we read our previous decision in 

United States v. Pruitt, 146 F.3d 638 (6th Cir. 1998), as having “interpreted 21 U.S.C. 

§ 841(b)(1)(A) to focus on the threshold quantity involved in the entire conspiracy.” United 

States v. Robinson, 547 F.3d 632, 638 (6th Cir. 2008) (emphasis added). Thus we approved the 

district court’s instructions to the jury “that the relevant quantity determination is of the quantity 

involved in the . . . conspiracy to distribute cocaine.” Robinson, 547 F.3d at 638. Here, too, the 

relevant quantity determination is the quantity involved in the conspiracy, which Gibson 

admitted was fifty grams or more of methamphetamine. That admission triggers the mandatoryminimum sentence in our circuit, regardless of whether Gibson could reasonably foresee the drug 

quantity.

Gibson contends on appeal, though, that he was involved in only three small meth sales, 

and that Alleyne v. United States, 133 S. Ct. 2151 (2013), turned the drug quantity into an 

element of a drug conspiracy that must be found by the jury. This court has already rejected this 
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argument, stating that “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). Gibson also asserts that United States 

v. Swiney, 203 F.3d 397 (6th Cir. 2000), holds that there is a mens rea requirement on the drugquantity element, and argues that that case must be followed as the prior published opinion. This 

court has already rejected that argument, too. “[Swiney]—which stated ‘that Pinkerton principles

. . . determine whether a defendant convicted under 21 U.S.C. § 846 is subject to the penalty [for 

the addict’s death as] set forth in 21 U.S.C. § 841(b)(1)(C)’—concerns sentencing under the 

Guidelines,” and sets out a “different standard” from “the standard applicable to the drug 

quantity finding.” United States v. Watson, 620 F. App’x 493, 509 (6th Cir. 2015) (quoting 

Swiney, 203 F.3d at 509).

Gibson also failed to preserve this challenge to his sentence. As Gibson concedes, this 

court therefore reviews Gibson’s sentence for plain error only. See, e.g., United States v. 

Cabrera, 811 F.3d 801, 808 (6th Cir. 2016). There is no plain error in this mandatory-minimum 

sentence. Moreover, Gibson’s counsel cannot have been ineffective for not having raised a legal 

argument that is foreclosed by our precedent.

The result in this case may appear unjust. Mandatory minimums for limited-amount coconspirators do not serve the drug statute’s underlying purpose of more severely punishing 

larger-amount drug dealers. Nonetheless, absent a change in our law from the en banc court, the 

Supreme Court,1or Congress, we are bound by our precedents. 

The district court’s sentence is affirmed.

 

1 There is a split in the circuits on the issue. The First and Fourth Circuits, for instance, squarely require that the 

triggering amount of the mandatory minimum in a drug conspiracy case be reasonably foreseeable to the individual 

defendant. See United States v. Pizarro, 772 F.3d 284, 292–94 (1st Cir. 2014); United States v. Foster, 507 F.3d 

233, 250–251 (4th Cir. 2007).