UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50509 Plaintiff-Appellee, D.C. No. v. 3:13-cr-04514- BEN-7 ROBERT COLLAZO, AKA Weasel, Defendant-Appellant.

UNITED STATES OF AMERICA, No. 16-50048 Plaintiff-Appellee, D.C. No. v. 3:13-cr-04514- BEN-1 LINO DELGADO-VIDACA, AKA Leonard Delgado, AKA Spanky, Defendant-Appellant.

UNITED STATES OF AMERICA, No. 16-50117 Plaintiff-Appellee, D.C. No. v. 3:13-cr-04514- BEN-4 JULIO RODRIGUEZ, AKA Sniper, Defendant-Appellant. 2 UNITED STATES V. COLLAZO UNITED STATES OF AMERICA, No. 16-50195 Plaintiff-Appellee, D.C. No. v. 3:13-cr-04514- BEN-2 STEVEN AMADOR, AKA Gordo, AKA Insane, Defendant-Appellant.

UNITED STATES OF AMERICA, No. 16-50345 Plaintiff-Appellee, D.C. No. v. 3:13-cr-04514- BEN-3 ISAAC BALLESTEROS, AKA Lazy, Defendant-Appellant. ORDER AND AMENDED OPINION

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Argued and Submitted En Banc January 13, 2020 Pasadena, California

Filed December 2, 2020 Amended January 14, 2021 UNITED STATES V. COLLAZO 3

Before: Sidney R. Thomas, Chief Judge, and William A. Fletcher, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Jacqueline H. Nguyen, Paul J. Watford, Andrew D. Hurwitz, Eric D. Miller, Bridget S. Bade and Daniel A. Bress, Circuit Judges.

Order; Opinion by Judge Ikuta; Dissent by Judge W. Fletcher

SUMMARY*

Criminal Law

In appeals by five defendants who were convicted of conspiracy to distribute controlled substances under 21 U.S.C. §§ 846 and 841, the en banc court clarified the requirements for conspiracy under § 846 and the facts that trigger the penalties under 21 U.S.C. §§ 841(b)(1)(A)–(B).

The en banc court explained that to convict the defendants of conspiracy under § 846 in this case, the government must prove beyond a reasonable doubt that each defendant agreed with another person that some member of the conspiracy would commit the relevant underlying offense (here 21 U.S.C. § 841(a)), and that each defendant had the requisite intent for a § 841(a) conviction.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 UNITED STATES V. COLLAZO

The en banc court held that in order to obtain a particular sentence under 21 U.S.C. § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) for a violation of § 841(a), the government must prove beyond a reasonable doubt the specific type and the quantity of substance involved in the offense, but not the defendant’s knowledge (or intent) with respect to that type and drug quantity.

The en banc court clarified that a conviction under § 846 does not require proof of a level of criminal intent greate