                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 16a0618n.06

                                            No. 15-6122


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Nov 21, 2016
UNITED STATES OF AMERICA,                                 )
                                                                            DEBORAH S. HUNT, Clerk
                                                          )
       Plaintiff-Appellee,                                )
                                                          )
v.                                                        )       ON APPEAL FROM THE
                                                          )       UNITED STATES DISTRICT
RAY GIBSON (#17645-032),                                  )       COURT FOR THE EASTERN
                                                          )       DISTRICT OF KENTUCKY
       Defendant-Appellant.                               )
                                                          )
                                                          )



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

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

grams or more of methamphetamine. See 21 U.S.C. § 846. That crime carries a mandatory-

minimum sentence of ten years’ imprisonment. 21 U.S.C. § 841(b)(1)(A)(viii). The district

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

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

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

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

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

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

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

trigger the ten-year mandatory minimum. The drug conspiracy statute exposes a co-conspirator
No. 15-6122
United States v. Gibson

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

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

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

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

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

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

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

distributing fifty grams or more of methamphetamine, together with its ten-year mandatory-

minimum sentence.

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

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

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

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

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

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

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

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

admitted was fifty grams or more of methamphetamine. That admission triggers the mandatory-

minimum sentence in our circuit, regardless of whether Gibson could reasonably foresee the drug

quantity.

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

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

element of a drug conspiracy that must be found by the jury. This court has already rejected this


                                                 -2-
No. 15-6122
United States v. Gibson

argument, stating that “Alleyne did not rewrite § 841(b) to add a new mens rea requirement.”

United States v. Dado, 759 F.3d 550, 570 (6th Cir. 2014). Gibson also asserts that United States

v. Swiney, 203 F.3d 397 (6th Cir. 2000), holds that there is a mens rea requirement on the drug-

quantity element, and argues that that case must be followed as the prior published opinion. This

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

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

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

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

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

Swiney, 203 F.3d at 509).

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

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

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

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

argument that is foreclosed by our precedent.

         The result in this case may appear unjust. Mandatory minimums for limited-amount co-

conspirators do not serve the drug statute’s underlying purpose of more severely punishing

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

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

         The district court’s sentence is affirmed.




1
  There is a split in the circuits on the issue. The First and Fourth Circuits, for instance, squarely require that the
triggering amount of the mandatory minimum in a drug conspiracy case be reasonably foreseeable to the individual
defendant. See United States v. Pizarro, 772 F.3d 284, 292–94 (1st Cir. 2014); United States v. Foster, 507 F.3d
233, 250–251 (4th Cir. 2007).

                                                         -3-
