United States v. Duane Eleby , 672 F. App'x 775 ( 2017 )

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NOT FOR PUBLICATION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.