                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 11 2017
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   13-50462

              Plaintiff-Appellee,                D.C. No.
                                                 2:12-cr-00159-MMM-5
 v.

DUANE LEWIS ELEBY,                               MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                            Submitted January 9, 2017**
                               Pasadena, California

Before:      KOZINSKI and WATFORD, Circuit Judges, and BENNETT,***
             District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
                                                                                 page 2
      1. To apply the penalties under 21 U.S.C. § 841(b), the government need

not “prove that the defendant knew the type or quantity of the controlled

substance.” See United States v. Jefferson, 791 F.3d 1013, 1015 (9th Cir. 2015);

United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002). It is sufficient that

Eleby admitted that the controlled substance he was carrying was, in fact,

approximately 4,922 grams of powder cocaine. Because his sentence of 90 months

falls within the statutory range under section 841(b)(1)(B)(ii), it doesn’t violate

either Apprendi v. New Jersey, 530 U.S. 466 (2000), or Alleyne v. United States,

133 S. Ct. 2151 (2013).


      2. Relying on United States v. Encarnación-Ruiz, 787 F.3d 581 (1st Cir.

2015), Eleby argues that he pled guilty only to aiding and abetting. Although the

indictment in Encarnación-Ruiz, like the indictment in this case, charged the

defendants with “aiding and abetting each other,” neither party in that case

questioned that the defendant was liable only as an aider and abettor. Id. at 591–92.

Moreover, the plea agreement in Encarnación-Ruiz showed that the defendant only

admitted to “aiding and abetting another co-defendant.” Id. at 592 (citing the plea

agreement). By contrast, Eleby’s indictment and plea agreement affirmatively
                                                                                  page 3
show that he was charged with and pled guilty to possession with intent to

distribute a controlled substance as both a principal and an aider and abettor.


      3. Because we don’t examine Eleby’s sentence under the aiding and

abetting theory of liability, we don’t address whether Rosemond v. United States,

134 S. Ct. 1240 (2014) changed the mens rea requirement for aiding and abetting a

§ 841(a)(1) offense. See Jefferson, 791 F.3d at 1017.


      AFFIRMED.
