United States v. Briseno

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This order and judgment is not binding precedent, except under the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.
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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.
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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
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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
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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...)
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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.
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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).
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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
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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
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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
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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
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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
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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
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