                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       January 18, 2006
                               TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                         Clerk of Court

UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.
                                                  Nos. 03-8099, 04-8001
                                                   (District of Wyoming)
JOSE ANTONIO BRISENO and JOSE
                                                  (D.C. No. 03-CR-10-D)
ALONSO URIBE RODRIGUEZ,

             Defendants-Appellants.




                          ORDER AND JUDGMENT *


Before EBEL, MURPHY and McCONNELL, Circuit Judges.




                              I. INTRODUCTION

      After examining the briefs and appellate records, this panel has determined

unanimously to honor the parties’ request for decisions on the briefs without oral




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The cases are

therefore ordered submitted without oral argument.

      Jose Antonio Briseno and Jose Alonso Uribe Rodriguez each entered a

conditional guilty plea to a single count of conspiracy to possess with intent to

distribute methamphetamine and marijuana, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A), (b)(1)(D), and 846. Both reserved the right to appeal the

district court’s denial of their motions to suppress as fruits of an illegal search the

drugs underlying the charges. See Fed. R. Crim. P. 11(a)(2). Briseno’s and

Rodriguez’s arrest and prosecution grew out of a roadside search of a vehicle,

which led to the discovery of significant quantities of marijuana and

methamphetamine. On appeal, they assert the roadside detention was

unreasonably long and the consent to search was not voluntarily given.

      In addition, Rodriguez argues the district court erred in calculating his

sentence based on both the marijuana and methamphetamine, instead of only the

marijuana. In particular, Rodriguez argues that because the factual basis of the

plea only included his knowledge of the marijuana, the Supreme Court’s decision

in Apprendi v. New Jersey, 530 U.S. 466 (2000) and this court’s decision in

United States v. Jones, 235 F.3d 1231 (10th Cir. 2000) mandate that his sentence

be calculated solely with regard to the marijuana.




                                           -2-
        Upon review, this court concludes the various contentions advanced by both

Briseno and Rodriguez on appeal are without merit. Accordingly, exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the district court in

full.



                                II. BACKGROUND

A. Roadside Stop

        1. Factual Background

        On January 12, 2003, Wyoming Highway Trooper Ron Jones stopped a

white Suburban because it had no visible registration. As Jones approached the

Suburban, he noticed what appeared to be a temporary registration in the rear

window; the temporary registration was not previously visible to Jones because of

the dark tint of the Suburban’s windows. At Jones’ request, the driver of the

Suburban, Jose Alonso Uribe Rodriguez, produced a Washington driver’s license.

Jones noticed that both Rodriguez and his passenger, Jose Antonio Briseno, were

wearing necklaces with a Jesus Malverde emblem and that a similar necklace was

hanging from the Suburban’s rearview mirror. Based on his experience and

training, Jones recognized the Jesus Malverde emblem as being associated with

drug dealers.




                                         -3-
      Pursuant to his standard practice, Jones asked Rodriguez to exit the

Suburban and accompany him to the patrol car. Jones asked Rodriguez where he

and Briseno were traveling; Rodriguez responded that they were traveling to

Iowa. Jones and Rodriguez continued the conversation in the patrol car while

Jones checked Rodriguez’s driver’s license and filled out a warning ticket for

improper display of the vehicle registration. During this conversation, Rodriguez

indicated that Briseno was the owner of the Suburban. He initially indicated that

he and Briseno had been in Reno for a week visiting family, but later stated they

had only been in Reno for about three days to gamble.

      While Rodriguez remained in the patrol car, Jones approached the

passenger side of the Suburban, opened the door, and began to converse with

Briseno. Briseno confirmed that the Suburban belonged to him and produced an

Iowa driver’s license. When Jones asked Briseno about his and Rodriguez’s

travel itinerary, Briseno indicated they had been in Reno gambling for about two

weeks. Briseno further indicated that although both he and Rodriguez had family

in Iowa, neither had any family in Reno.

      When he returned to the patrol car to run a check on Briseno’s license,

Jones asked Rodriguez about the inconsistencies between his and Briseno’s

stories regarding the pair’s travel plans. Rodriguez became evasive and offered




                                           -4-
no explanation. Jones also asked Rodriguez about the Jesus Malverde necklaces.

Rodriguez responded that the necklaces depicted a religious figure in Mexico.

      At 4:54 p.m., approximately eighteen minutes after the initial stop, Jones

had Rodriguez exit the patrol vehicle. Jones returned all the paperwork

previously provided by both Rodriguez and Briseno, issued a warning ticket, and

asked Rodriguez if he had any questions. When Rodriguez responded that he did

not have any questions, Jones asked Rodriguez if he would be willing to answer a

few additional questions. Rodriguez answered in the affirmative. Jones then

asked Rodriguez if there were any weapons, drugs, or large amounts of cash in the

vehicle. Rodriguez stated that none of those items were in the vehicle. Jones

next asked Rodriguez if he could search the Suburban. Rodriguez replied that it

was okay with him as long as Briseno agreed. After Briseno agreed to allow

Jones to search the vehicle, Jones asked him to exit the vehicle. Jones conducted

a pat down of Briseno when he exited the vehicle and directed Briseno to stand

with Rodriguez next to a second trooper who had arrived on the scene to provide

backup.

      During the search of the Suburban, Jones observed what appeared to be a

hidden compartment in the rear wheel well on the passenger side of the Suburban.

Jones removed some screws and a plastic cover and observed two large, vacuum-

sealed bags containing what appeared to be marijuana. Briseno and Rodriguez


                                        -5-
were placed under arrest and the Suburban was taken to the Wyoming Department

of Transportation yard. A detailed search of the vehicle revealed a total of nine

pounds of marijuana and seven pounds of methamphetamine.

      2. Procedural Background

      Briseno and Rodriguez filed motions to suppress evidence derived from the

search of the Suburban. In the motion, Briseno and Rodriguez asserted as

follows: (1) their detention was unreasonable in that its scope was not related to

the original purpose of the stop; and (2) the consent to the search of the Suburban

was not voluntarily given. The district court concluded each of these assertions

was without merit and denied the motion to suppress.

      As to the claim that Jones had exceeded the scope of the original purpose

for the stop, the district court concluded “that all of Trooper Jones’ actions prior

to issuing the warning ticket and returning the documents he had obtained from

Defendants were reasonably related in scope to the circumstances which justified

the stop.” D. Ct. Order at 6. 1 In the alternative, the district court concluded


      1
       In support of this conclusion, the district court noted as follows:
      Defendants do not challenge the initial stop or the subsequent
      issuance of a warning for failure to properly display the vehicle
      registration. It was not unreasonable for Defendants to wait eighteen
      or nineteen minutes while Trooper Jones checked, first, the vehicle
      registration and Defendant Rodriguez’ license and criminal history
      and second, upon learning that Defendant Briseno was the owner of
      the vehicle, checked Defendant Briseno’s license and criminal
                                                                        (continued...)

                                          -6-
Jones had sufficient reasonable suspicion of wrongdoing to further detain Briseno

and Rodriguez based on “the inconsistent stories regarding Defendants’ travel

plans, Jones’ observation of the necklaces with a Jesus Malaverde symbol, and his

observation of only small travel bags even though Defendants had indicated they

had been gone for 1-2 weeks.” Id.

      The district court likewise rejected Briseno’s and Rodriguez’s claim that

the consent to search the Suburban was not freely and voluntarily given. Id. at 7.

The district court found, after reviewing videotape of the encounter and

considering the testimony of Jones, that Briseno’s command of English was

sufficient to allow him to understand he was consenting to a search of the

Suburban. The district court likewise found that although Briseno had not

specifically stated Jones could remove panels in the Suburban during the course

of his search, permission to search such areas was contemplated by the parties.



      1
        (...continued)
       history. Trooper Jones testified that dispatch may be assisting 10-12
       troopers at any given time. Further it is permissible for Trooper
       Jones to ask questions relating to Defendants’ travel plans and
       ownership of the vehicle. Upon reviewing the videotape of the stop,
       the Court saw no evidence that Trooper Jones was stalling in any way
       or taking an excessive amount of time to perform these tasks
       reasonably related in scope to the traffic stop. After Trooper Jones
       returned the documents to Rodriguez, Rodriguez agreed to the
       trooper asking him more questions; thus, the subsequent encounter
       was consensual.
D. Ct. Order at 6.

                                        -7-
Id. (quoting United States v. Pena, 143 F.3d 1363, 1368 (10th Cir. 1998) (“One in

possession of illegal drugs does not typically leave them out in the open. Consent

to an officer’s request to search for drugs would reasonably include areas in

which one would be expected to hide drugs.”)). Finally, the district court rejected

the assertion that Briseno’s consent to the search was made in response to a

coercive show of force on the part of the officers. 2 Id. at 7-8.

      Having resolved all of the arguments set out in Briseno’s and Rodriguez’s

motions, the district court denied the request to suppress the evidence obtained as

a result of the search of the Suburban.

B. Rodriguez’s Guilty Plea and Sentence




      2
        The district court found as follows:
              Upon approaching the Suburban to speak with its passenger,
       Defendant Briseno, Trooper Jones opened the door and leaned his
       head into the vehicle simply in order to converse with Briseno who
       was seated in the back seat. There was nothing forceful or coercive
       about the manner in which Trooper Jones did this. Although 3 other
       troopers eventually joined Trooper Jones at the scene, only one of the
       officers came near the Defendants and Trooper Jones’ patrol car prior
       to the search, and none of the troopers unholstered his firearm or
       displayed any show of force or coercion. The presence of these
       additional troopers does not necessarily create a coercive
       environment. Finally, the failure to advise a defendant of his right to
       refuse consent to search is not determinative of whether the consent
       was voluntary. Considering the totality of the circumstances, the
       Court finds that the Defendants’ consent was freely and voluntarily
       given.
D. Ct. Order at 8 (citations omitted).

                                          -8-
      After the denial of his motion to dismiss, Rodriguez entered into a plea

agreement with the government. Rodriguez pleaded guilty to a single count of

conspiracy to possess with intent to distribute, and to distribute, more than five

hundred grams of methamphetamine, and to possess with intent to distribute

marijuana. In exchange for the plea, the two remaining counts in the indictment

were dismissed.

      The factual basis of Rodriguez’s plea was, to say the least, unusual.

Although he admitted he knew there were drugs in the Suburban and both

marijuana and methamphetamine were found in the Suburban, he asserted he was

aware only of the presence of the marijuana. Both counsel for the government

and counsel for Rodriguez informed the district court that they were comfortable

with the factual basis, noted they vigorously disagreed over the legal significance

of Rodriguez’s purported lack of knowledge about the presence of

methamphetamine in the Suburban, and indicated the matter should be resolved at

sentencing. After highlighting this issue for Rodriguez and informing him the

potential sentence he faced could be widely different depending on the contested

legal significance of his lack of knowledge of the methamphetamine, the district

court accepted Rodriguez’s guilty plea.

      After extensive briefing by the parties, the district court held a two-phase

sentencing hearing to resolve whether Apprendi made Rodriguez’s knowledge of


                                          -9-
the methamphetamine an essential element of the sentencing provisions of 21

U.S.C. § 841(b). The district court ultimately concluded that although the type

and amount of drugs could be an essential element of an enhanced sentence under

§ 841(b), the type and amount of the drugs in the Suburban were not contested by

Rodriguez. The district court further concluded § 841(b) did not contain a mens

rea element regarding the quantity or type of drugs (i.e., although 21 U.S.C. §

841(a) contained a mens rea element regarding a defendant’s knowledge of the

presence of illegal drugs, § 841(b) did not contain a mens rea element as to the

quantity and type of drugs present), and Apprendi did not dictate a different

interpretation of § 841(b). Accordingly, the district court concluded Rodriguez’s

purported lack of knowledge of the presence of methamphetamine in the

Suburban was legally insignificant and calculated Rodriguez’s sentence with

reference to the methamphetamine.

      Rodriguez appeals, contending Apprendi and Jones mandate his sentence be

calculated solely with reference to the marijuana found in the Suburban because

the factual basis of his guilty plea did not contain any reference to his knowledge

of the presence of methamphetamine.



                                 III. ANALYSIS

A. The Roadside Stop


                                        -10-
      1. Scope of the Detention

      In reviewing the denial of a motion to suppress, this court accepts the

factual findings of the district court unless they are clearly erroneous. United

States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir. 1995) (en banc). “We view

the evidence on appeal in the light most favorable to the government.” Id. The

ultimate determination of reasonableness under the Fourth Amendment is a

question of law subject to de novo review. Id.

      The Constitution guarantees “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV. “Temporary detention of individuals during the stop of an

automobile by the police, even if only for a brief period and for a limited purpose,

constitutes a ‘seizure’ of ‘persons’ within the meaning of this provision.” Whren

v. United States, 517 U.S. 806, 809-10 (1996). “Because a routine traffic stop is

more analogous to an investigative detention than a custodial arrest, we have

routinely analyzed such stops under the framework announced in Terry v. Ohio,

392 U.S. 1 (1968).” United States v. Holt, 264 F.3d 1215, 1228 (10th Cir. 2001)

(en banc). “Under Terry, we determine the reasonableness of a search or seizure

by conducting a dual inquiry, asking first whether the officer’s action was

justified at its inception, and second whether it was reasonably related in scope to




                                         -11-
the circumstances which justified the interference in the first place.” Id.

(quotations omitted).

      Briseno and Rodriguez first contend the initial stop by Jones did not

support any contact with either of them. In essence, they argue that because they

did not violate any Wyoming laws regarding the placement of the temporary

registration, and because that fact was clear the minute Jones walked in sight of

the temporary registration, Jones was obligated to terminate the encounter

immediately. The problem with this argument, however, is that Briseno and

Rodriguez never raised it before the district court. Instead, as specifically noted

by the district court, they did “not challenge the initial stop or the subsequent

issuance of a warning for failure to properly display the vehicle registration.” D.

Ct. Order at 6 (emphasis added). Having failed to challenge before the district

court the propriety of the warning for failing to properly display the vehicle

registration, Briseno and Rodriguez cannot now assert on appeal that Jones was

obligated to immediately terminate the encounter because the temporary

registration was properly displayed. See United States v. Anderson, 374 F.3d 955,

958 (10th Cir. 2004).

      In the alternative, Briseno and Rodriguez assert Jones impermissibly

extended the duration of the stop for reasons unrelated to the purpose of the stop.

In support of this contention, they rely primarily on this court’s decision in United


                                         -12-
States v. McSwain, 29 F.3d 558 (10th Cir. 1994). Their reliance on McSwain is,

however, seriously misplaced. In McSwain, a trooper stopped the defendant “for

the sole purpose of ensuring the validity of the vehicle’s temporary registration

sticker.” Id. at 561. As soon as the trooper approached the vehicle, he observed

that the temporary registration was valid. Id. The trooper nevertheless

approached the vehicle and questioned the defendant about his travel plans and

requested the defendant’s license and registration. Id. This court concluded the

trooper’s actions violated the Fourth Amendment. Id. at 561-62 (“Having no

objectively reasonable articulable suspicion that illegal activity had occurred or

was occurring, [the trooper’s] actions in questioning [the defendant] and

requesting his license and registration exceeded the limits of a lawful

investigative detention and violated the Fourth Amendment.” (quotations,

alterations, and citation omitted)).

      This case, unlike McSwain, involved a traffic violation. The temporary

registration was improperly displayed, a matter Briseno and Rodriguez did not

contest before the district court. Jones issued the defendants a warning for the

improper display. As McSwain makes clear, it is well established in this Circuit

that an officer conducting a routine traffic stop may inquire about identity and

travel plans, request a driver’s license and vehicle registration, and run a

computer check, as long as at the time the officer does so he or she “still has


                                         -13-
some objectively reasonable articulable suspicion that a traffic violation has

occurred or is occurring.” Id. (quotations omitted). Accordingly, Briseno and

Rodriguez are simply wrong in asserting that, under the facts of this particular

case, Jones was required to terminate the encounter as soon as he realized the

temporary registration was valid.

      Nor were Jones’ actions between the initiation of the stop and the return of

Briseno’s and Rodriguez’s travel documents improper. Instead, those actions

were “reasonably related in scope to the circumstances which justified the [stop]

in the first place.” Holt, 264 F.3d at 1228 (quotation omitted). As noted above,

McSwain makes clear that officers are entitled to inquire about identity and travel

plans, request a driver’s license and vehicle registration, and run computer

checks, as long as there exists reasonable suspicion that a traffic violation has

occurred or is occurring. 29 F.3d at 561. Here, the district court found that

process took no more than nineteen minutes to complete and that there was no

evidence in the record that Jones was stalling in the performance of these routine

tasks. D. Ct. Order at 6. Like the district court, we conclude this time frame is

reasonable in light of the need to complete checks on both Briseno and Rodriguez

and the fact that dispatch may be assisting as many as twelve troopers at any

given time. See id. Accordingly, this court rejects Briseno’s and Rodriguez’s

contention that Jones impermissibly extended the duration and scope of the stop.


                                         -14-
      2. Validity of the Consent

      Briseno and Rodriguez assert that the consent for Jones to search the

Suburban was not voluntarily given. “A traffic stop may become a consensual

encounter if the officer returns the license and registration and asks questions

without further constraining the driver by an overbearing show of authority.”

United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). A court must

consider the totality of the circumstances to determine whether the officer’s

conduct would have communicated to a reasonable person that he was free to

terminate the encounter of his own volition. United States v. Elliott, 107 F.3d

810, 813-14 (10th Cir. 1997). “In determining whether a consent to search was

free from coercion, a court should consider, inter alia, physical mistreatment, use

of violence, threats, threats of violence, promises or inducements, deception or

trickery, and the physical and mental condition and capacity of the defendant.”

United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998) (quotation omitted).

Finally, it must be noted that “[b]ecause voluntariness is a question of fact, [this]

court must accept the district court’s finding unless it is clearly erroneous.”

United States v. West, 219 F.3d 1171, 1177 (10th Cir. 2000).

      In asserting that their consent to Jones’ search of the Suburban was not

voluntary, Briseno and Rodriguez argue as follows: (1) Jones testified at the

suppression hearing that he would have continued to detain them even had they


                                         -15-
not consented to the search because he believed he had reasonable articulable

suspicion of wrongdoing; (2) they were separated from their traveling companion

during the interaction with Jones; (3) the presence of a number of officers on the

scene was coercive; (4) Jones leaned into the Suburban when he asked Briseno for

consent to search; and (5) Briseno’s grasp of English is too limited to have given

valid consent. For those reasons set out below, this court finds these arguments

unconvincing.

      In contrast to the defendant’s assertions on appeal, Jones’ unexpressed

subjective views about whether he had a sufficient legal basis to hold them if they

refused to consent to a search of the Suburban are irrelevant to the question

whether the consent was free of coercion. This is especially true in light of the

district court’s finding that there was nothing coercive or forceful in the manner

in which Jones interacted with Briseno and Rodriguez. For instance, the district

court specifically found that Jones leaned into the Suburban simply to facilitate

conversation with Briseno, who was seated in the back seat of the Suburban.

Because Jones did not express, either through word or deed, that he intended to

continue detaining the defendants had they declined consent to search the

Suburban, Jones’ subjective intent is irrelevant to the question whether Briseno’s

consent was voluntary.




                                         -16-
      The remainder of Briseno’s and Rodriguez’s contentions are equally

unavailing. The separation of Briseno from his traveling companion was of a

limited duration, lasting no more than twenty minutes. In addition, the district

court rejected the assertion that Briseno could not understand English, finding

that “[t]here is no evidence to support a finding that the Defendants did not

understand what Trooper Jones was asking them.” D. Ct. Order at 7. Finally, we

agree with the district court that the presence of other officers on the scene did

not create a coercive environment. The district court specifically found that

although three other troopers eventually joined Jones at the scene, only one of

those officers came near Briseno prior to the search. None of the troopers

unholstered his firearm or displayed any show of force. In sum, the defendants

have not identified anything in the record demonstrating that the district court’s

conclusion that Briseno voluntarily consented to the search of the Suburban is

clearly erroneous.




                                         -17-
B. Rodriguez’s Sentence

      Rodriguez contends on appeal that the district court erred in calculating his

sentence on the basis of the methamphetamine found in the Suburban because the

factual basis of his plea did not include a statement that he knew the

methamphetamine was in the vehicle. Rodriguez’s argument can be summarized

as follows: after the Supreme Court’s decision in Apprendi, § 841(b) must be read

to include a requirement that before the enhanced penalties apply, a defendant

must know of both the type and quantity of illegal drugs in his possession. The

proper interpretation of § 841(b) under Apprendi is a question of law this court

reviews de novo. United States v. Jackson, 240 F.3d 1245, 1247 (10th Cir. 2001).

      “The language of the statute is the starting place for any inquiry into a

criminal statute’s mens rea requirements.” United States v. King, 345 F.3d 149,

152 (2d Cir. 2003) (quotation and alterations omitted), cert denied, 540 U.S. 1167

(2004); see also United States v. Nava-Sotelo, 354 F.3d 1202, 1204 (10th Cir.

2003) (“In interpreting a statute, we begin with the plain language of the statute

itself.” (quotation omitted)). Although § 841(a) contains a specific mens rea

requirement, no such requirement is set out in § 841(b). Compare 21 U.S.C. §

841(a) (“Except as authorized by this subchapter, it shall be unlawful for any

person knowingly or intentionally . . . .”), with id. § 841(b) (“Except as otherwise

provided in . . . this title, any person who violates subsection (a) of this section


                                          -18-
shall be sentenced as follows . . . .”). Prior to the Supreme Court’s decision in

Apprendi, courts routinely held that § 841(b) imposed a strict liability punishment

scheme based solely on the type and quantity of drugs possessed by the defendant

and that a defendant’s knowledge of the type and quantity was not relevant to the

sentencing decision. See, e.g., United States v. Valencia-Gonzalez, 172 F.3d 344,

346 (5th Cir. 1999); United States v. Strange, 102 F.3d 356, 361 (8th Cir. 1996);

United States v. Salazar, 5 F.3d 445, 446 (9th Cir. 1993); United States v.

Collado-Gomez, 834 F.2d 280, 281 (2d Cir. 1987). Rodriguez nevertheless argues

that the Supreme Court’s decision in Apprendi, wherein the Court held 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,” mandates that § 841(b) be reinterpreted

as containing a mens rea requirement. 530 U.S. at 490.

      The problem with Rodriguez’s argument is that his knowledge of the type

and quantity of drugs that he was carrying is not a fact that increases his

punishment. This is so because knowledge is not an element of the sentencing

enhancements set out in § 841(b). Instead, the only elements of the enhanced

crimes set out in § 841(b) are the type and quantity of drug possessed. Each of

the nine circuits to have considered this issue post-Apprendi has so held. King,

345 F.3d at 152-53 (holding that § 841(b) does not contain a mens rea


                                          -19-
requirement and noting “the language of § 841 clearly conveys Congress’s intent

to subject drug dealers to the enhancements provided in § 841(b) regardless of

their awareness of drug type and quantity”); United States v. Browner, 336 F.3d

274, 276-77 (4th Cir.) (holding that Apprendi did not change the government’s

mens rea burden under § 841 and “the defendant’s knowledge with regard to the

exact nature, or for that matter the exact amount, of a controlled substance is not

a fact that increases the penalty under § 841(b)”), cert. denied, 540 U.S. 936

(2003); United States v. Villarce, 323 F.3d 435, 439 (6th Cir. 2003) (holding

Apprendi does not require proof of knowledge as to type or quantity of drugs);

United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir.) (“Knowledge

of drug type and quantity is not, in the words of Apprendi, a ‘fact that increases

the [§ 841(b)] penalty.’” (emphasis omitted)), cert. denied, 538 U.S. 1068 (2003);

United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002) (“Apprendi did not

change the long established rule 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.” (emphasis omitted)); United

States v. Collazo-Aponte, 281 F.3d 320, 326 (1st Cir. 2002) (“The plain language

of § 841(b) requires the government to prove only that the offense ‘involved’ a

particular type and quantity of drugs, not that the defendant knew that he was


                                         -20-
distributing that particular type and quantity.” (emphasis omitted); United States

v. Barbosa, 271 F.3d 438, 458 (3d Cir. 2001) (same); United States v. Carrera,

259 F.3d 818, 830 (7th Cir. 2001) (same); United States v. Sheppard, 219 F.3d

766, 768 n.2 (8th Cir. 2000) (same). We agree with the other circuits that have

considered the question and conclude there is nothing in Apprendi that mandates

importation of a scienter requirement into § 841(b). Thus, the district court

correctly calculated Rodriguez’s sentence with reference to the methamphetamine

found in the Suburban.

        Contrary to Rodriguez’s assertions, this rule is not inconsistent with this

court’s opinion in Jones. In Jones, this court simply held that “the quantity of

drugs involved in a violation of § 841 is an essential element of the offense if that

fact exposes the defendant to a heightened maximum sentence under §

841(b)(1)(A) or (B).” 235 F.3d at 1236. There is nothing at all in Jones to

indicate that Apprendi requires the imputation of a mens rea into § 841(b). In this

case, Rodriguez admitted methamphetamine was found in the Suburban and did

not contest the quantity found. Accordingly, the rule set out in Jones is satisfied

here.



                                 IV. CONCLUSION




                                          -21-
     For those reasons set out above, the order of the district court denying

Briseno’s and Rodriquez’s motion to suppress is AFFIRMED. Rodriguez’s




sentence is likewise AFFIRMED.


                                              Entered for the Court


                                              Michael R. Murphy
                                              Circuit Judge




                                       -22-
