                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.
