     Case: 17-10801      Document: 00514564058         Page: 1    Date Filed: 07/20/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-10801
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 20, 2018
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

KHALED AL HAJ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-243-1


Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Khaled Al Haj appeals his jury trial conviction and the sentence imposed
for one count of conspiracy to distribute a controlled substance and one count
of conspiracy to distribute a controlled substance analogue. The district court
sentenced him to 180 months of imprisonment on each count, to be served
concurrently, and to concurrent three-year terms of supervised release. With
respect to his conviction, Al Haj argues that the evidence was insufficient to


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-10801

prove that he had the requisite knowledge, i.e., that he knew he was
distributing controlled substances and controlled substance analogues, on each
count; the controlled substances and analogues at issue here are commonly
referred to as spice. Regarding the sentence, Al Haj argues that the district
court erred by including special conditions of supervised release in the written
judgment that were not orally pronounced at sentencing.
        We review Al Haj’s preserved challenges to the sufficiency of the
evidence de novo. See United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012).
That standard requires us to consider the evidence presented in the light most
favorable to the Government to determine whether a rational trier of fact could
have found the essential elements of the crimes beyond a reasonable doubt.
See United States v. Lopez-Moreno, 420 F.3d 420, 437-38 (5th Cir. 2005).
        The Controlled Substances Act (CSA) makes it unlawful to knowingly
manufacture, distribute, or possess with the intent to distribute controlled
substances. McFadden v. United States, 135 S. Ct. 2298, 2302 (2015) (citing
21 U.S.C. § 841(a)(1)). “The Controlled Substance Analogue Enforcement Act
of 1986 identifies a category of substances substantially similar to those listed
on the federal controlled substances schedule, 21 U.S.C. § 802(32)(A), and
instructs courts to treat those analogues, if intended for human consumption,
as controlled substances for purposes of federal law.” McFadden, 135 S. Ct. at
2303.
        To obtain a conviction under the CSA, the Government must establish
that the defendant “knew he was dealing with ‘a controlled substance.’” Id.
When the substance is an analogue, “that knowledge requirement is met if the
defendant knew that the substance was controlled under the CSA or the
Analogue Act, even if he did not know its identity.” Id. The Court in McFadden
explained that this knowledge requirement can be met in two ways:



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     First, it can be established by evidence that a defendant knew that
     the substance with which he was dealing is some controlled
     substance—that is, one actually listed on the federal drug
     schedules or treated as such by operation of the Analogue Act—
     regardless of whether he knew the particular identity of the
     substance. Second, it can be established by evidence that the
     defendant knew the specific analogue he was dealing with, even if
     he did not know its legal status as an analogue.
Id. at 2305. McFadden applies to conspiracies charged under 21 U.S.C. § 846.
See United States v. Stanford, 823 F.3d 814, 826-28 (5th Cir. 2016) (direct
appeal); United States v. Stanford, 883 F.3d 500, 504 (5th Cir. 2018) (direct
appeal after resentencing after remand).
      The record reflects that Al Haj, his supplier, and smoke shop owners to
whom Al Haj sold spice routinely attempted to conceal their illegal activities
and engaged in evasive behavior designed to avoid suspicion and detection by
law enforcement. Id. For example, trial testimony established that Al Haj
used code names when ordering spice from his supplier and used automotive
repair terminology when discussing spice with one of his buyers. The spice
transactions were conducted in cash and in secluded places or when no one was
around, and the spice was disguised in boxes or plastic bags for transport
between buyers and sellers. Al Haj and his supplier routinely changed their
phone numbers to avoid leaving evidence of their transactions and discussed
how to avoid detection by law enforcement.
      In addition, the supplier shipped packages of spice to Al Haj at several
different locations, none of which were his home or the smoke shops; they
limited the number of deliveries to each address to avoid suspicion and
consistently sought out new addresses to which to ship the product; the
contents of the spice packages were sometimes misidentified as auto parts; and
the packages contained no packing slips, invoices, or any other standard
business documentation. Al Haj expressed his disappointment when he was


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                                 No. 17-10801

forced to discontinue shipping to an auto store because the workers there
discovered that the deliveries contained spice.
      When considering the evidence in the light most favorable to the verdict,
the jury reasonably concluded that Al Haj knew that he was distributing
controlled substances. McFadden, 135 S. Ct. at 2303; Lopez-Moreno, 420 F.3d
at 437-38. With respect to the analogue conviction, Al Haj does not dispute
that the evidence was sufficient under the first alternative way of proving
knowledge under McFadden.
      Al Haj next contends that there is a conflict between the oral and written
judgments because the district court referred to a list of conditions of
supervised release contained in an order setting additional terms of supervised
release, which he signed, instead of pronouncing each special condition at
sentencing. Because Al Haj could have raised this argument in the district
court, we review it for plain error. United States v. Bishop, 603 F.3d 279, 280
(5th Cir. 2010).
      We find that no conflict exists between the oral pronouncement of
sentence and the written judgment. See United States v. Bigelow, 462 F.3d
378, 381 (5th Cir. 2006); United States v. Mudd, 685 F.3d 473, 480 (5th Cir.
2012). The district court referenced at sentencing the additional conditions set
forth in the order, Al Haj signed the order, and the written judgment imposes
substantially similar conditions.   Thus, he has not shown error, plain or
otherwise, in the imposition of the special conditions that were not pronounced
at sentencing. See Bishop, 462 F.3d at 280.
      Al Haj’s convictions and sentence are AFFIRMED.




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