FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT COLLAZO, AKA Weasel,

Defendant-Appellant.

No. 15-50509

D.C. No.

3:13-cr-04514-

BEN-7

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LINO DELGADO-VIDACA, AKA

Leonard Delgado, AKA Spanky,

Defendant-Appellant.

No. 16-50048

D.C. No.

3:13-cr-04514-

BEN-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JULIO RODRIGUEZ, AKA Sniper,

Defendant-Appellant.

No. 16-50117

D.C. No.

3:13-cr-04514-

BEN-4
2 UNITED STATES V. COLLAZO

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN AMADOR, AKA Gordo,

AKA Insane,

Defendant-Appellant.

No. 16-50195

D.C. No.

3:13-cr-04514-

BEN-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ISAAC BALLESTEROS, AKA Lazy,

Defendant-Appellant.

No. 16-50345

D.C. No.

3:13-cr-04514-

BEN-3

ORDER AND

AMENDED

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

Amended January 14, 2021
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.

Order;

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.

* 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

The en banc court held that in order to obtain a particular

sentence under 21 U.S.C. § 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 (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
UNITED STATES V. COLLAZO 5

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—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 DefendantAppellant Julio Rodriguez.

Martin G. Molina, Law Office of Martin G. Molina, San

Diego, California, for Defendant-Appellant Lino DelgadoVidaca.

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 PlaintiffAppellee.

Kimberly S. Trimble and Vincent J. Brunkow, Federal

Defenders of San Diego Inc., San Diego, California; Rich

Curtner, Federal PublicDefender, 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.

ORDER

The opinion filed on December 2, 2020, appearing at

982 F.3d 596 (9th Cir. 2020), is amended as follows:

At page 605, footnote 3, replace:

<Defense counsel for each defendant expresslyjoined this

argument, except Delgado-Vidaca’s counsel.>

with

<The district court assumed that the defense counsel for

each defendant joined this argument.>.

At page 624, remove footnote 31.
8 UNITED STATES V. COLLAZO

***

Defendants-Appellants’ Petition for Rehearing by Full

Court (ECF No. 185) was circulated to the judges of the

court, and no judge requested a vote for full court en banc

consideration. The Petition for Rehearing by Full Court is

DENIED. With this amendment, no further petitions for

rehearing or rehearing en banc may be filed.

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)

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.
UNITED STATES V. COLLAZO 9

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

gangmembers” 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

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
10 UNITED STATES V. COLLAZO

behalf of the made member who controls the particular

territory.

The five defendants in this appeal worked for Luis “BooBoo” Garcia, a made member of the Mexican Mafia who is

serving a life sentence at Pelican BayState 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

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
UNITED STATES V. COLLAZO 11

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:

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

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.
12 UNITED STATES V. COLLAZO

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

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
UNITED STATES V. COLLAZO 13

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 (reasonablyforeseeable 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.

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 amountforCollazo and

Delgado-Vidaca, and the requisite heroin amount for

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 The district court assumed that the defense counsel for each

defendant joined this argument.

4 The jury also found each defendant guilty of participating in the

RICO conspiracy.
14 UNITED STATES V. COLLAZO

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

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).

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.
UNITED STATES V. COLLAZO 15

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

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
16 UNITED STATES V. COLLAZO

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

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

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.”
UNITED STATES V. COLLAZO 17

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.9See 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).

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

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.
18 UNITED STATES V. COLLAZO

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 necessaryfor 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.

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).

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.
UNITED STATES V. COLLAZO 19

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

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—

11 For convenience, we use the term “distribute” and its variations to

refer collectively to the actions prohibited by § 841(a)(1).
20 UNITED STATES V. COLLAZO

. . .

(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
UNITED STATES V. COLLAZO 21

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 ofthat authorized in accordance with

the provisions ofTitle 18 or $5,000,000 ifthe defendant

is an individual or $25,000,000 if the defendant is other

than an individual, or both.
22 UNITED STATES V. COLLAZO

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
UNITED STATES V. COLLAZO 23

(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. Wemust 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 66. 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.
24 UNITED STATES V. COLLAZO

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.”14556 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

“knowinglyviolates” certain subsections—“modifiesthe 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).
UNITED STATES V. COLLAZO 25

‘violates’ and its direct object,” including a separate, crossreferenced 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.
26 UNITED STATES V. COLLAZO

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 59–60. 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.
UNITED STATES V. COLLAZO 27

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 (quotingRussello 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
28 UNITED STATES V. COLLAZO

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 “howfar” question raised

in our case, the dissent’s reliance on Staples, Dissent at 56, 63, is

mistaken.
UNITED STATES V. COLLAZO 29

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
30 UNITED STATES V. COLLAZO

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”
UNITED STATES V. COLLAZO 31

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 hazardoussubstance onFederal land,

and, by such use—
32 UNITED STATES V. COLLAZO

§ 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.
UNITED STATES V. COLLAZO 33

poison, chemical, or other hazardous substance on Federal

land.” Dissent at 64–65. 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).
34 UNITED STATES V. COLLAZO

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 65–66, 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).
UNITED STATES V. COLLAZO 35

Staples, 511 U.S. at 618. Such a concern is not implicated in

§ 841, under which the defendant must be found guilty of

knowinglyor intentionallydistributing 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
36 UNITED STATES V. COLLAZO

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 55, “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 complywith 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 37–38 & 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
UNITED STATES V. COLLAZO 37

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).
38 UNITED STATES V. COLLAZO

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
UNITED STATES V. COLLAZO 39

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

equallyirrelevant 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
40 UNITED STATES V. COLLAZO

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.
UNITED STATES V. COLLAZO 41

Although Feola stated its specific holding in terms of

“facts giving rise to federal jurisdiction,” id. at 696, its

framework for determiningwhether 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”
42 UNITED STATES V. COLLAZO

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 EleventhCircuit 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 ofthe 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
UNITED STATES V. COLLAZO 43

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.”).
44 UNITED STATES V. COLLAZO

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 FifthCircuit 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.
UNITED STATES V. COLLAZO 45

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.
46 UNITED STATES V. COLLAZO

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 postconviction 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.26See 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).
UNITED STATES V. COLLAZO 47

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 activitythat was reasonably foreseeable bythe

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).
48 UNITED STATES V. COLLAZO

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).
UNITED STATES V. COLLAZO 49

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
50 UNITED STATES V. COLLAZO

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 provisionsincorporate 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 (3dCir. 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).
UNITED STATES V. COLLAZO 51

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.
52 UNITED STATES V. COLLAZO

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
UNITED STATES V. COLLAZO 53

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. 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

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.”). 
54 UNITED STATES V. COLLAZO

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 mandatoryminimum 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

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
UNITED STATES V. COLLAZO 55

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

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
56 UNITED STATES V. COLLAZO

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 Statesthat 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

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 penaltymakes the alreadystrong presumption
UNITED STATES V. COLLAZO 57

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

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 statutorymaximum is an

element of the crime, disagreeing with New Jersey’s

contention that a fact resulting in a higher sentence was a
58 UNITED STATES V. COLLAZO

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.

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. XCitement Video is a prime example of ignoring the niceties of

grammar. The statute at issue provided:
UNITED STATES V. COLLAZO 59

(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.

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. XCitement Video, Inc., 982 F.2d 1285, 1289–90 (9th Cir.

1992). We had held that mens rea requirement did not
60 UNITED STATES V. COLLAZO

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

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.
UNITED STATES V. COLLAZO 61

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.

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
62 UNITED STATES V. COLLAZO

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

independently. Indeed, the presumption applies with

particular force, given the severity of the penalties.
UNITED STATES V. COLLAZO 63

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 “§ 841(b)(1), unlike

§ 841(a), is silent as to any mens rea requirement.” Maj. Op.

at 23. 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 31. But the

question before us is not centrally a grammatical question, to

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
64 UNITED STATES V. COLLAZO

one subsection of the statute specifies a mens rea for criminal

violations, including violations carryingmandatorysentences,

and the immediatelyfollowing 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

correctlypoints 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 “knowinglyor intentionally” applied

to crimes specified in § 841(b)(1)(A)–(B). Maj. Op. at 32. 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

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
UNITED STATES V. COLLAZO 65

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 34 (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 28–29 (internal

citations omitted). The Supreme Court has never held that

the presumption of mens rea protects only the entirely

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
66 UNITED STATES V. COLLAZO

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‘apparentlyinnocent 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

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)).
UNITED STATES V. COLLAZO 67

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.