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