United States v. George Jefferson , 791 F.3d 1013 ( 2015 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                No. 13-50647
    Plaintiff-Appellee,
    D.C. No.
    v.                   3:13-cr-01378-LAB-1
    GEORGE JEFFERSON,
    Defendant-Appellant.             OPINION
    Appeal from the United States District Court
    for the Southern District of California
    Larry A. Burns, District Judge, Presiding
    Argued and Submitted
    January 8, 2015—Pasadena, California
    Filed June 26, 2015
    Before: Alex Kozinski, Kim McLane Wardlaw,
    and William A. Fletcher, Circuit Judges.
    Opinion by Judge Wardlaw;
    Concurrence by Judge W. Fletcher
    2                UNITED STATES V. JEFFERSON
    SUMMARY*
    Criminal Law
    Affirming a sentence for knowingly and intentionally
    importing a controlled substance into the United States in
    violation of 21 U.S.C. §§ 952 and 960, the panel rejected the
    defendant’s argument that recent Supreme Court authority
    requires the government to prove that the defendant knew the
    specific type and quantity of the drugs he imported in order
    to trigger the ten-year mandatory minimum under 21 U.S.C.
    § 960(b)(1)(H).
    Judge W. Fletcher concurred because this court is bound
    by United States v. Carranza, 
    289 F.3d 634
    (9th Cir. 2002),
    but wrote to explain why Carranza should be overruled.
    COUNSEL
    Kara Hartzler (argued), Federal Defenders of San Diego, Inc.,
    San Diego, California, for Defendant-Appellant.
    Laura E. Duffy, United States Attorney, Bruce R. Castetter,
    Assistant United States Attorney, Chief, Appellate Section,
    Criminal Division, and Benjamin J. Katz (argued), Special
    Assistant United States Attorney, San Diego, California, for
    Plaintiff-Appellee.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. JEFFERSON                              3
    OPINION
    WARDLAW, Circuit Judge:
    George Jefferson appeals his ten-year mandatory
    minimum sentence for knowingly and intentionally importing
    a controlled substance into the United States in violation of
    21 U.S.C. §§ 952 and 960. We reject Jefferson’s argument
    that recent Supreme Court authority requires the government
    to prove that the defendant knew the specific type and
    quantity of the drugs he imported in order to trigger the ten-
    year mandatory minimum under 21 U.S.C. § 960(b)(1)(H).
    Accordingly, we affirm.
    I.
    Jefferson entered a guilty plea to one count of knowingly
    and intentionally importing 4.65 kilograms of a mixture
    containing methamphetamine into the United States.
    Jefferson claims that, at the time he crossed the border, he
    thought the substance he was transporting was marijuana, not
    methamphetamine, and that he did not know how much of the
    illegal substance was in his truck. At sentencing he
    contended, among other things,1 that under the Supreme
    Court’s decisions in Alleyne v. United States, 
    133 S. Ct. 2151
    (2013) and Flores-Figueroa v. United States, 
    556 U.S. 646
    (2009), knowledge of drug type and quantity were elements
    1
    Jefferson also objected to the presentence report’s classification of him
    as a career offender under United States Sentencing Guidelines (U.S.S.G.)
    § 4B1.1, and to the Probation Office’s decision against recommending a
    minor role reduction in his Guidelines range under U.S.S.G. § 3B1.2. The
    district court rejected these objections, and Jefferson does not appeal these
    rulings.
    4              UNITED STATES V. JEFFERSON
    of the offense, and that, therefore, the government had to
    prove he knew the exact drug type and quantity he was
    transporting for the 10-year mandatory minimum under
    21 U.S.C. § 960(b)(1)(H) to apply. The district court
    concluded that Alleyne and Flores-Figueroa did not abrogate
    long-established Ninth Circuit precedent that the government
    is not required to prove that a defendant knew the type or
    quantity of the controlled substance he imported to be found
    guilty under § 960. The district court imposed a sentence of
    144 months of incarceration, followed by 10 years of
    supervised release.
    II.
    We have jurisdiction pursuant to 28 U.S.C. § 1291. We
    review the district court’s interpretation of a statute de novo
    and its application of a statute to the facts for abuse of
    discretion. United States v. Yazzie, 
    743 F.3d 1278
    , 1288 (9th
    Cir.), cert. denied, 
    135 S. Ct. 227
    (2014).
    III.
    It is “unlawful . . . to import into the United States from
    any place outside thereof, any controlled substance in
    schedule I or II of subchapter I” of the Controlled Substances
    Act. 21 U.S.C. § 952(a). Methamphetamine is a schedule II
    controlled substance. 21 C.F.R. § 1308.12(a), (d)(2). “Any
    person who . . . knowingly or intentionally imports or exports
    a controlled substance . . . shall be punished as provided in
    [21 U.S.C. § 960(b)].” 21 U.S.C. § 960(a) (citing 21 U.S.C.
    § 952).
    21 U.S.C. § 960(b), entitled “Penalties,” prescribes
    varying minimum and maximum terms of imprisonment and
    UNITED STATES V. JEFFERSON                  5
    fines depending on the type and quantity of controlled
    substance a person imports. For example, a person convicted
    of importing 500 grams or more of a mixture containing
    methamphetamine shall be sentenced to a minimum of 10
    years imprisonment and a maximum of life imprisonment.
    
    Id. § 960(b)(1)(H).
    A person convicted of importing less than
    50 kilograms of marijuana faces no mandatory minimum, and
    shall be sentenced to a maximum of 5 years imprisonment, a
    fine not exceeding $250,000, or both. 
    Id. § 960(b)(4).
    We have consistently held that a defendant can be
    convicted under § 960 if he believed he imported or exported
    some controlled substance. See United States v. Carranza,
    
    289 F.3d 634
    , 644 (9th Cir. 2002); United States v. Ramirez-
    Ramirez, 
    875 F.2d 772
    , 774 (9th Cir. 1989); United States v.
    Rea, 
    532 F.2d 147
    , 149 (9th Cir. 1976) (per curiam). The
    government is not required to prove that the defendant knew
    the type or quantity of the controlled substance he imported
    to obtain a conviction under § 960(a), 
    Carranza, 289 F.3d at 644
    , or for the penalties under § 960(b) to apply, see United
    States v. Salazar, 
    5 F.3d 445
    , 446 (9th Cir. 1993); United
    States v. Lopez-Martinez, 
    725 F.2d 471
    , 474–75 (9th Cir.
    1984). Section 960(a) requires a person to “knowingly or
    intentionally” import a controlled substance; § 960(b) refers
    to different types and amounts of controlled substances for
    sentencing purposes.
    6                 UNITED STATES V. JEFFERSON
    A.
    Jefferson first argues that this long established precedent
    was abrogated2 by the Supreme Court’s decision in Alleyne v.
    United States, 
    133 S. Ct. 2151
    (2013), which held that any
    fact that increases the mandatory minimum sentence is an
    “element” of the offense that must be submitted to the jury
    and found beyond a reasonable doubt. 
    Id. at 2155.
    The
    decision extended the rule of Apprendi v. New Jersey,
    
    530 U.S. 466
    , 490 (2000), in which the Court established that,
    “[o]ther than the fact of a prior conviction, any fact that
    increases the penalty for a crime beyond the prescribed
    statutory maximum must be submitted to a jury, and proved
    beyond a reasonable doubt.” The Alleyne Court reasoned that
    “there is no basis in principle or logic to distinguish facts that
    raise the maximum from those that increase the 
    minimum.” 133 S. Ct. at 2163
    .
    Jefferson correctly notes that Alleyne renders the type and
    quantity of a controlled substance “elements” of a § 960
    offense. Both drug type and quantity can trigger, or increase,
    a mandatory minimum sentence under § 960(b), and therefore
    both facts must be proved to a jury beyond a reasonable
    doubt—or, as here, admitted by the defendant. See Blakely
    v. Washington, 
    542 U.S. 296
    , 303 (2004) (holding that facts
    may be admitted by the defendant “for Apprendi purposes”);
    United States v. Guerrero-Jasso, 
    752 F.3d 1186
    , 1190 (9th
    2
    We may overrule our precedent only if it is clearly irreconcilable with
    an intervening higher authority. See Miller v. Gammie, 
    335 F.3d 889
    , 893
    (9th Cir. 2003) (en banc). Absent such an intervening higher authority, “a
    later three-judge panel . . . has no choice but to apply the earlier-adopted
    rule.” Hart v. Massanari, 
    266 F.3d 1155
    , 1171 (9th Cir. 2001).
    UNITED STATES V. JEFFERSON                              7
    Cir. 2014) (holding that admissions by the defendant satisfy
    Apprendi).3
    This does not mean, however, as Jefferson urges, that the
    “knowingly or intentionally” mens rea standard found in
    § 960(a) applies to the elements found in § 960(b). Alleyne
    provides no guidance as to which facts increase mandatory
    minimum sentences under a given statute. It addressed only
    who must determine such facts, and which burden of proof
    applies. See United States v. Montalvo, 
    331 F.3d 1052
    , 1061
    (9th Cir. 2003) (Kozinski, J., concurring) (“Apprendi affects
    only the identity of the decisionmaker and the burden of proof
    . . . .”); United States v. Brough, 
    243 F.3d 1078
    , 1079 (7th
    Cir. 2001) (“Apprendi . . . make[s] the jury the right
    decisionmaker (unless the defendant elects a bench trial), and
    the reasonable-doubt standard the proper burden, when a fact
    raises the maximum lawful punishment.”). Determining
    which facts increase the mandatory minimum sentence is
    instead a statute specific inquiry—and Alleyne does not alter
    our precedent that a defendant’s knowledge of the type and
    quantity of the controlled substance he imports is not such a
    fact, and, therefore, not an element of the offense.
    Nor do two decisions that postdate the district court’s
    ruling—Burrage v. United States, 
    134 S. Ct. 881
    (2014), and
    Rosemond v. United States, 
    134 S. Ct. 1240
    (2014)—require
    § 960(a)’s “knowingly or intentionally” standard to be
    applied to drug type and quantity. The Burrage Court
    examined a twenty-year mandatory minimum that applies
    when a defendant “knowingly or intentionally . . .
    3
    A defendant who enters a guilty plea waives his right to a trial by jury,
    see Florida v. Nixon, 
    543 U.S. 175
    , 187 (2004), and therefore also waives
    Alleyne and Apprendi’s protections of that right.
    8                 UNITED STATES V. JEFFERSON
    distribute[s] . . . a controlled substance,” 21 U.S.C. § 841(a),
    and its use results in “death or serious bodily injury,” 
    id. § 841(b)(1)(C).4
    See 134 S. Ct. at 885
    . In summarizing the
    charged offense, the Court stated that an element was the
    “knowing or intentional distribution of heroin.” 
    Id. at 887.
    The Court’s use of the word “heroin” instead of “controlled
    substance” does not clearly signal that a defendant must know
    the type of drug he imports or distributes. The statute’s mens
    rea standard was not at issue, and the Court’s analysis was
    devoted entirely to the question of causation: whether
    § 841(b)(1)(C) “applies when use of a covered drug supplied
    by the defendant contributes to, but is not a but-for cause of,
    the victim’s death or injury.” 
    Id. at 885;
    see also 887–92. “It
    is unlikely in the extreme that the Supreme Court intended by
    [a] single sentence to overrule sub silentio years of decisional
    law . . . .” United States v. Fonseca-Caro, 
    114 F.3d 906
    , 907
    (9th Cir. 1997) (per curiam).
    In Rosemond, the Court concluded that a defendant
    charged with aiding and abetting an armed drug sale under
    18 U.S.C. §§ 2 and 924(c) must have had “advance
    knowledge” that one of his confederates would use or carry
    a gun as part of the crime’s commission, because “a state of
    mind extending to the entire crime” is necessary for
    
    conviction. 134 S. Ct. at 1245
    , 1248–49. The federal aiding
    and abetting statute, unlike § 960, derives from common law
    standards of accomplice liability, a fact which was critical to
    the Court’s decision. See 
    id. at 1245.
    Rosemond says nothing
    4
    21 U.S.C. § 841 is “structurally identical” to § 960. United States v.
    Mendoza-Paz, 
    286 F.3d 1104
    , 1110 (9th Cir. 2002). In addition to the
    “death results” enhancement, § 841(b) also provides different minimum
    and maximum terms of imprisonment and fines based on the type and
    quantity of controlled substance distributed. 21 U.S.C. § 841(a)–(b).
    UNITED STATES V. JEFFERSON                    9
    about the mens rea required for the crime of importing a
    controlled substance, or about mens rea requirements
    generally.
    Our conclusion that Alleyne did not change the mens rea
    requirement for § 960 is further supported by the Sixth
    Circuit’s decision in United States v. Dado, 
    759 F.3d 550
    ,
    570 (6th Cir.), cert. denied, 
    135 S. Ct. 510
    (2014).
    Addressing § 841, the Sixth Circuit rejected Dado’s argument
    that Alleyne effectively overruled its precedent that “the
    government need not prove mens rea as to the type and
    quantity of the drugs in order to establish a violation of
    § 841(b).” 
    Dado, 759 F.3d at 569
    (quoting United States v.
    Villarce, 
    323 F.3d 435
    , 439 (6th Cir. 2003)). We agree with
    the Sixth Circuit that this contention confuses the requisite
    burden of proof with the mens rea standard, and that Alleyne
    did not—and could not—change the statutory text. See 
    id. at 570.
    B.
    Nor does the Supreme Court’s decision in Flores-
    Figueroa, 
    556 U.S. 646
    (2009), alter the statutory landscape
    or override our decision in Carranza. In Flores-Figueroa,
    the Supreme Court examined the crime of aggravated identity
    theft as set forth in 18 U.S.C. § 1028A—a statute which
    penalizes a person, who in the commission of other specified
    crimes, “knowingly transfers, possesses, or uses, without
    lawful authority, a means of identification of another person.”
    18 U.S.C. § 1028A(a)(1). The Court applied ordinary
    grammatical rules to the text of the statute, reasoning that
    “where a transitive verb has an object, listeners in most
    contexts assume that an adverb (such as knowingly) that
    modifies the transitive verb tells the listener how the subject
    10             UNITED STATES V. JEFFERSON
    performed the entire action, including the object as set forth
    in the sentence.” 
    Flores-Figueroa, 556 U.S. at 650
    . The
    Court concluded that the statute required the government to
    prove that a defendant knew the identification belonged to
    another person. 
    Id. This conclusion
    was also fully consistent
    with the way “courts ordinarily interpret criminal statutes,”
    which is to “read a phrase in a criminal statute that introduces
    the elements of a crime with the word ‘knowingly’ as
    applying that word to each element.” 
    Id. at 652.
    The text of § 960(a) and (b) is not structured like that of
    18 U.S.C. § 1028A(a)(1). The mens rea standard in § 960(a)
    is separate and distinct from the penalty ranges set forth in
    § 960(b). Because § 960’s statutory text and structure are not
    parallel to that of § 1028A(a)(1), the ordinary grammatical
    interpretive rules articulated in Flores-Figueroa do not apply
    here. See United States v. Castagana, 
    604 F.3d 1160
    ,
    1162–63, 1165–66 (9th Cir. 2010) (concluding that Flores-
    Figueroa did not require a particular construction of a statute
    because the statute at issue was not parallel to the statute in
    Flores-Figueroa).
    Relying on United States v. X-Citement Video, Inc.,
    
    513 U.S. 64
    (1994), a case cited in Flores-Figueroa,
    Jefferson further contends that the presumption that scienter
    is generally implied in a criminal statute, even when it is not
    expressed, requires us to read a mens rea element into
    § 960(b). In X-Citement Video, the Court interpreted a child
    pornography statute, 18 U.S.C. § 2252 (1988 ed. and Supp.
    V), that once again had different textual and structural
    UNITED STATES V. JEFFERSON                              11
    features than § 960,5 and that, if interpreted in its most natural
    manner would criminalize a significant amount of innocent
    behavior. 
    See 513 U.S. at 68
    –69, 73. The Court there held
    that the “knowingly” mens rea in § 2252(a)(1) applied to the
    terms “use of a minor” and “sexually explicit conduct” in
    § 2252(a)(1)(A). 
    Id. at 78.
    The Court’s imputation of
    knowledge to the use of a minor, i.e., requiring the
    government to prove that the defendant knew that the person
    depicted in the sexually explicit material was in fact
    underage, also avoided a potential First Amendment problem.
    See 
    id. (citing New
    York v. Ferber, 
    458 U.S. 747
    , 764–65
    (1982)).
    Here, there is no potential for the penalization of innocent
    conduct nor do we face constitutional avoidance concerns. If
    the government must prove that the defendant knew he was
    importing some amount of a controlled substance, that is
    sufficient to ensure the statute penalizes only culpable
    conduct. See United States v. Flores-Garcia, 
    198 F.3d 1119
    ,
    1121–22 (9th Cir. 2000) (“Provided the defendant recognizes
    he is doing something culpable, however, he need not be
    aware of the particular circumstances that result in greater
    punishment.”); X–Citement 
    Video, 513 U.S. at 72
    n.3
    (“Criminal intent serves to separate those who understand the
    wrongful nature of their act from those who do not, but does
    5
    Section 2252 penalizes any person who: “(1) knowingly transports or
    ships . . . in . . . interstate or foreign commerce . . . 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.” 18 U.S.C. § 2252(a)(1).
    12                UNITED STATES V. JEFFERSON
    not require knowledge of the precise consequences that may
    flow from that act once aware that the act is wrongful.”).6
    IV.
    Our precedent holding that the government need not
    prove that the defendant knew the precise type or quantity of
    the drug he imported is not clearly irreconcilable with any of
    the Supreme Court decisions cited by Jefferson. Because
    Jefferson knew that he imported a controlled substance into
    the United States, and because he in fact imported 4.65
    kilograms of a mixture containing methamphetamine, the
    6
    Jefferson also relies upon other principles of statutory construction to
    support his reading of § 960. He cites Staples v. United States, 
    511 U.S. 600
    , 616 (1994), for the proposition that courts should construe offenses
    that carry particularly harsh penalties (such as a ten-year mandatory
    minimum sentence) as requiring a stricter mens rea. He also notes that
    applying a mens rea of “knowingly” to drug type and quantity is
    consistent with the principle that any ambiguity in the reach of a criminal
    statute should be resolved in favor of lenity. Finally, he contends that
    reading “knowingly or intentionally” into the elements of drug type and
    quantity is consistent with congressional intent.
    We need not consider the strength of these arguments, as we cannot
    reconsider our precedent or depart from its reasoning unless there is
    “intervening higher authority” that is “clearly irreconcilable” with the
    prior decision. 
    Miller, 335 F.3d at 893
    ; see also 
    Hart, 266 F.3d at 1171
    .
    Jefferson has not cited to any “intervening higher authority” in support of
    these positions.
    UNITED STATES V. JEFFERSON                           13
    district court did not err in concluding that § 960(b)(1)(H)’s
    ten-year mandatory minimum term of imprisonment applied.7
    AFFIRMED.
    W. FLETCHER, Circuit Judge, concurring:
    I concur in Judge Wardlaw’s careful opinion, which
    faithfully applies our circuit’s law regarding the mens rea
    required to sentence a defendant convicted of illegally
    importing drugs. But I do so only because we are bound by
    United States v. Carranza, 
    289 F.3d 634
    (9th Cir. 2002).
    Under the rule of Carranza and its predecessors, a defendant
    who reasonably believes that he is importing a relatively
    small quantity of marijuana into the country must be
    sentenced to the ten-year mandatory minimum prison term
    that applies to a defendant who knowingly imports the same
    quantity of methamphetamine. I do not believe that Congress
    intended this result. I write to explain why, in my view,
    Carranza should be overruled.
    I
    Jefferson was convicted of violating 21 U.S.C. §§ 952 and
    960, which together criminalize the importation of narcotic
    drugs into the United States. Section 960, under which
    7
    In Jefferson’s reply brief, he also argues that the Information violated
    due process by not providing him with fair notice of the Government’s
    burden and the charges against him. Jefferson has waived this argument
    by not raising it in his opening brief. United States v. Romm, 
    455 F.3d 990
    , 997 (9th Cir. 2006).
    14             UNITED STATES V. JEFFERSON
    Jefferson’s penalty was determined, is an omnibus narcotics
    statute that prescribes penalties for a variety of trafficking
    crimes. Section 960(a) sets out “[u]nlawful acts.” 21 U.S.C.
    § 960(a). As relevant here, it provides that “[a]ny person who
    . . . knowingly or intentionally imports . . . a controlled
    substance . . . shall be punished as provided in subsection (b)
    of this section.” 
    Id. (citing id.
    § 952).
    Section 960(b) sets out separate and increasingly severe
    penalties corresponding to different types and quantities of
    drugs. Defendants who import up to 50 kilograms of
    marijuana, for example, are not subject to a mandatory
    minimum sentence; instead, they face a maximum prison
    sentence of five years.        
    Id. § 960(b)(4)
    (citing 
    id. § 841(b)(1)(D)).
    By contrast, defendants who import as little
    as 500 grams of cocaine are subject to a five-year mandatory
    minimum sentence. 
    Id. § 960(b)(2)(B).
    Defendants who
    import as little as 50 grams of methamphetamine are subject
    to a ten-year mandatory minimum sentence.                 
    Id. § 960(b)(1)(H).
    These escalating penalties, which depend on the particular
    drug a defendant imported, were established by the Anti-Drug
    Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207. See
    U.S. Sentencing Comm’n, Special Report to Congress:
    Cocaine and Federal Sentencing Policy 116 (1995). Under
    the Act, a defendant who manufactures, distributes, or
    imports certain quantities of dangerous illegal drugs faces
    significantly more severe sentences than a person who traffics
    in the same quantities of less dangerous drugs. The
    increasingly severe penalties correspond to the culpability of
    the defendant, as well as the danger to the public posed by the
    importation of the particular drugs.
    UNITED STATES V. JEFFERSON                  15
    The question presented in this appeal is whether a
    defendant who reasonably believed he was illegally importing
    several kilograms of marijuana, but in fact illegally imported
    several kilograms of methamphetamine, must be sentenced
    to the ten-year minimum term that corresponds to
    methamphetamine. As Judge Wardlaw’s opinion explains,
    we have confronted this question on several occasions. See,
    e.g., Carranza, 
    289 F.3d 634
    ; United States v. Salazar, 
    5 F.3d 445
    (9th Cir. 1993); United States v. Ramirez-Ramirez,
    
    875 F.2d 772
    (9th Cir. 1989); United States v. Lopez-
    Martinez, 
    725 F.2d 471
    (9th Cir. 1984). Each time, we have
    concluded that “the government need not prove that the
    defendant knew the type and amount of a controlled
    substance that he imported or possessed; the government need
    only show that the defendant knew that he imported or
    possessed some controlled substance.” 
    Carranza, 289 F.3d at 644
    (emphasis in original); see also Op. at 5.
    The Carranza rule has devastating consequences for a
    defendant who reasonably believes that he is carrying a
    controlled substance but is mistaken about what that
    substance is. This case makes those consequences clear. The
    government does not dispute Jefferson’s claim that he
    believed he was importing marijuana into the United States.
    If Jefferson had in fact been carrying only the four kilograms
    of marijuana that he believed he was carrying, he would have
    faced a maximum sentence of five years, with no mandatory
    minimum. Under Carranza, however, he must be sentenced
    to a minimum of ten years in prison because he was, in fact,
    carrying methamphetamine.
    16              UNITED STATES V. JEFFERSON
    II
    If I were writing on a clean slate, I would hold that
    Jefferson, who reasonably believed he was importing
    marijuana, may not be punished by the mandatory minimum
    that attaches to the importation of methamphetamine. I reach
    this conclusion for three reasons.
    First, it is a cardinal rule of the interpretation of criminal
    statutes that “the existence of a mens rea is the rule of, rather
    than the exception to, the principles of Anglo-American
    criminal jurisprudence.” United States v. U.S. Gypsum Co.,
    
    438 U.S. 422
    , 436 (1978) (alteration and internal quotation
    marks omitted). That is, we generally interpret criminal
    statutes to require the government to prove beyond a
    reasonable doubt that “the defendant kn[e]w the facts that
    ma[d]e his conduct illegal.” Staples v. United States,
    
    511 U.S. 600
    , 605 (1994). Absent this background rule, the
    terms of many federal statutes “would sweep out . . . , except
    when expressly preserved, the ancient requirement of a
    culpable state of mind” — a result “inconsistent with our
    philosophy of criminal law.” Morissette v. United States,
    
    342 U.S. 246
    , 250 (1952). Subjecting a defendant to a decade
    in prison based on a fact that he did not know — indeed, in
    this case, a fact that Jefferson reasonably believed not to be
    true — is inconsistent with “fundamental and far-reaching”
    principles of criminal liability. 
    Id. at 247.
    Second, I find nothing in the Anti-Drug Abuse Act that
    overcomes the presumption of a mens rea. See 
    Staples, 511 U.S. at 605
    –06. An important purpose of the escalating
    mandatory minimums established by the Act, as noted above,
    is to approximate the culpability of the defendant and the
    dangerousness of his act. Whether or not these mandatory
    UNITED STATES V. JEFFERSON                  17
    minimums are reliable approximations, see Kimbrough v.
    United States, 
    552 U.S. 85
    , 97–99 (2007) (canvassing
    criticisms of the sentencing disparity between crack and
    powder cocaine), they reflect the basic insight that someone
    who imports a kilogram of methamphetamine is more
    culpable than someone who imports a kilogram of marijuana.
    The Supreme Court has recognized an exception to the
    presumption of a mens rea for so-called “public welfare”
    offenses. See 
    Staples, 511 U.S. at 506
    –07; U.S. Gypsum 
    Co., 438 U.S. at 437
    –38; cf. United States v. Balint, 
    258 U.S. 250
    (1922). This exception originated in Balint, which considered
    whether a predecessor to the Anti-Drug Abuse Act, the
    Narcotic Act of 1914, required the government to prove only
    that a defendant knew that the items he sold were “narcotics”
    criminalized by the statute. See 
    id. at 254.
    But the
    sentencing scheme established by the Anti-Drug Abuse Act
    looks nothing like the scheme considered in Balint. Under
    the 1914 Act, a convicted defendant faced only the imposition
    of a discretionary fine or a short term in prison. See Pub. L.
    No. 63-223, ch. 1, § 9, 38 Stat. 785, 789 (1914). The purpose
    of the “criminal penalty,” as the Court explained, was simply
    “to secure recorded evidence” of transactions in narcotics,
    and thereby to promote compliance. 
    Balint, 258 U.S. at 254
    ;
    see also 
    Staples, 511 U.S. at 616
    (noting that public welfare
    offenses, as a historical matter, “almost uniformly . . .
    provided for only light penalties such as fines or short jail
    sentences”).
    By contrast, the Anti-Drug Abuse Act sets up a
    sentencing scheme that — at least as applied absent a mens
    rea requirement — is indiscriminately punitive in nature. It
    is considerably more punitive than the statutes considered in
    18              UNITED STATES V. JEFFERSON
    Staples, U.S. Gypsum, and Morissette. As Judge Kavanaugh
    has pointed out:
    The “harsh penalties” in Staples and
    [United States v. X-Citement Video, Inc.,
    
    513 U.S. 64
    (1994)] were statutory maximums
    of 10 years’ imprisonment. The “sever[e]”
    sanction in U.S. Gypsum was a statutory
    maximum of 3 years’ imprisonment. And the
    “high” penalty in Morissette was a statutory
    maximum of one year in prison. The Supreme
    Court deemed those penalties sufficiently
    stringent to support a requirement of mens
    rea.
    United States v. Burwell, 
    690 F.3d 500
    , 548 (D.C. Cir. 2012)
    (en banc) (Kavanaugh, J., dissenting) (citations omitted). The
    penalties considered in these cases were “harsh.” The
    mandatory minimum sentences imposed under § 960(b) are
    even more so. Anyone convinced that he is importing
    marijuana but convicted of importing methamphetamine
    faces a mandatory minimum of ten years. The presumption
    of a mens rea is designed to avoid precisely this injustice.
    Third, my conclusion is underscored by the Supreme
    Court’s increasing attention to the Sixth Amendment
    consequences of statutory sentencing schemes. See Alleyne
    v. United States, 
    133 S. Ct. 2151
    (2013); Harris v. United
    States, 
    536 U.S. 545
    (2002), overruled by 
    Alleyne, 133 S. Ct. at 2155
    ; Apprendi v. New Jersey, 
    530 U.S. 466
    (2000).
    Although I agree with Judge Wardlaw that Alleyne, the most
    recent in this line of cases, is not “clearly irreconcilable” with
    Carranza, see Miller v. Gammie, 
    335 F.3d 889
    , 893 (9th Cir.
    2003) (en banc), Alleyne reflects a broader concern with the
    UNITED STATES V. JEFFERSON                    19
    unfairness of sentencing schemes in which the facts that are
    “‘legally essential to the punishment to be inflicted’” need not
    be found beyond a reasonable doubt. See 
    Alleyne, 133 S. Ct. at 2160
    (quoting 1 Joel Prentiss Bishop, Criminal Procedure
    51 (2d ed. 1872)).
    Alleyne held that any “facts that increase mandatory
    minimum sentences must be submitted to the jury.” 
    Id. at 2163.
    The government agrees that in a case brought under
    21 U.S.C. § 960, such facts include the type and quantity of
    drug. After Alleyne, “the core crime and the fact triggering
    the mandatory minimum sentence” — here, the drug type and
    quantity — “together constitute a new, aggravated crime,
    each element of which must be submitted to the jury.” 
    Id. at 2161.
    There is no reason, in light of Alleyne, why it should
    be enough for the government to prove that a defendant knew
    that he was carrying a controlled substance, irrespective of
    what that substance was, in order to subject him to the
    mandatory minimum sentences set out at § 960(b). If the
    government must prove that Jefferson “knowingly” imported
    four kilograms of methamphetamine into the United States —
    that is, if both the fact of importation and the type of drug are
    “elements” of the crime — it should be required to prove not
    only that Jefferson knew he was importing an illegal drug, but
    also that he knew what that drug was.
    III
    The Supreme Court’s recent decision in McFadden v.
    United States, No. 14-378, 
    2015 WL 2473377
    (U.S. June 18,
    2015), does not change my reading of the statute in the case
    now before us. In McFadden, the Supreme Court considered
    the mens rea required to convict a defendant of violating the
    Controlled Substance Analogue Enforcement Act of 1986
    20             UNITED STATES V. JEFFERSON
    (“Analogue Act”). See 21 U.S.C. §§ 802(32)(A), 813. The
    Court held that in order to convict a defendant of violating the
    Analogue Act, the government must prove that the defendant
    knew “that the substance he is dealing with is some
    unspecified substance listed on the federal drug schedules.”
    
    2015 WL 2473377
    , at *4. It further held that, when trying to
    convict a defendant of violating the narcotics statutes using
    an analogue, the government must show that he “knew the
    specific analogue he was dealing with, even if he did not
    know its legal status as an analogue.” 
    Id. at *5.
    But the Court did not address whether a defendant could
    be subject to the mandatory minimums set out at § 960(b)(1)
    and (2) if all the defendant knew was that he had dealt with
    “some unspecified substance listed on the federal drug
    schedules . . . regardless of whether he knew the particular
    identity of the substance.” 
    Id. at *4–5.
    A defendant
    convicted of violating the Analogue Act is not subject to the
    mandatory minimums set out at § 960(b)(1) and (2); he is
    instead subject only to the maximum sentence set out at
    § 960(b)(3) that applies to all defendants whose crime
    “involve[s] a controlled substance in schedule I.” See
    21 U.S.C. § 960(b)(3); see also 
    id. § 813
    (“A controlled
    substance analogue shall . . . be treated . . . as a controlled
    substance in schedule I.”). Thus the Court had no reason in
    McFadden to consider whether the government must prove
    that a defendant knew “the particular identity” of the
    controlled substance he dealt with in order to subject him to
    the escalating mandatory minimums set out in the Anti-Drug
    Abuse Act for particular illegal drugs. For the reasons above,
    I would hold that the government must prove such
    knowledge.
    UNITED STATES V. JEFFERSON                  21
    I have no quarrel with the proposition that the government
    can prove a violation of § 960(a) by proving only that a
    defendant knew he violated the narcotics laws by importing
    “some unspecified substance listed on the federal drug
    schedules.” McFadden, 
    2015 WL 2473377
    , at *4. But I do
    not believe the government can subject that defendant to the
    escalating mandatory minimums set out at § 960(b)(1) and (2)
    without proving that he knew which illegal drug he was
    importing. Our longstanding presumption of a mens rea
    requirement, the history and purpose of the Anti-Drug Abuse
    Act, and the lessons of Alleyne and Apprendi teach us
    otherwise.
    IV
    Imposing ten years of mandatory imprisonment on this
    defendant is fundamentally “inconsistent with our philosophy
    of criminal law.” 
    Morissette, 342 U.S. at 250
    . While I join
    Judge Wardlaw’s careful opinion, I do so only because we are
    bound by Carranza. The government does not dispute that
    Jefferson reasonably believed that he was illegally importing
    marijuana. In the absence of Carranza, I would hold that
    Jefferson is not subject to the ten-year mandatory minimum
    applicable to the illegal importation of methamphetamine.