USA v. Jerimiah Swanson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10966
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERIMIAH SWANSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cr-00060-CEM-EJK-2
____________________
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2 Opinion of the Court 21-10966
Before WILSON, ANDERSON, and E DMONDSON, Circuit Judges.
PER CURIAM:
Jeremiah Swanson appeals his conviction for conspiracy to
possess with intent to distribute fentanyl. No reversible error has
been shown; we affirm.
A federal grand jury returned an indictment charging Swan-
son with one count of “knowingly, willfully, and intentionally
conspir[ing] . . . to possess with intent to distribute a controlled
substance,” in violation of 21 U.S.C. § 846. The indictment speci-
fied that the violation involved 40 grams or more of a substance
containing fentanyl: a drug quantity that made the charged offense
punishable under 21 U.S.C. § 841(b)(1)(B).
Swanson pleaded not guilty and proceeded to a jury trial.
The jury found Swanson guilty of the charged offense. The district
court sentenced Swanson to 80 months’ imprisonment followed by
4 years’ supervised release.
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21-10966 Opinion of the Court 3
On appeal, Swanson challenges the district court’s denial of
his motion for a judgment of acquittal. Swanson says the evidence
presented at trial was insufficient to permit a jury to find that Swan-
son knew that the controlled substance involved in his offense was
fentanyl.1
“We review
de novo a district court’s denial of judgment of
acquittal on sufficiency of evidence grounds.”
United States v. Ro-
driguez, 732 F.3d 1299, 1303 (11th Cir. 2013). In determining the
sufficiency of the evidence, “we consider the evidence in the light
most favorable to the government, drawing all reasonable infer-
ences and credibility choices in the government’s favor.”
Id. We
cannot overturn a jury’s verdict unless no “reasonable construction
of the evidence would have allowed the jury to find the defendant
guilty beyond a reasonable doubt.”
Id.
1 Swanson raises no substantive challenge to the sufficiency of the evidence
showing (1) that an agreement existed between two or more persons to pos-
sess with intent to distribute a controlled substance; (2) that Swanson knew
about the agreement; and (3) that Swanson joined voluntarily the agreement.
Swanson challenges only the sufficiency of the evidence establishing that he
knew and joined in an unlawful plan involving fentanyl.
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4 Opinion of the Court 21-10966
To obtain a conviction under 21 U.S.C. § 846, the govern-
ment must “prove beyond a reasonable doubt that (1) there was an
agreement between two or more people to violate § 841(a)(1); (2)
the defendant knew about the agreement; and (3) the defendant
voluntarily joined the agreement.”
United States v. Colston, 4
F.4th 1179, 1187 (11th Cir. 2021). Section 841(a)(1) makes it unlaw-
ful for a person “knowingly or intentionally . . . to . . . possess with
intent to manufacture, distribute, or dispense,
a controlled sub-
stance.” 21 U.S.C. § 841(a)(1) (emphasis added).
Contrary to Swanson’s assertion on appeal, the government
was not required to prove that Swanson knew that the controlled
substance involved in his offense was fentanyl. We have concluded
that a person violates section 841(a)(1) if he “knowingly possesses
with the intent to distribute illegal drugs of some sort, even if []he
does not know exactly which controlled substance it is.”
See Col-
ston, 4 F.4th at 1187;
see also United States v. Gomez, 905 F.2d
1513, 1514 (11th Cir. 1990) (“[I]t is well-settled that to sustain a con-
viction for possession with intent to distribute a controlled sub-
stance, it need not be proved that the defendant had knowledge of
the particular drug involved, as long as he knew he was dealing
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21-10966 Opinion of the Court 5
with a controlled substance.”). We have also said that, to obtain a
conviction for conspiracy under section 846, the government need
not “prove that the defendant conspired to distribute a specific sub-
stance but is only required to prove that the defendant conspired
to distribute a generic controlled substance.”
See United States v.
Achey, 943 F.3d 909, 914 (11th Cir. 2019) (explaining that the iden-
tity of the controlled substance is not an element of an offense un-
der section 841(a)(1) and is pertinent only for sentencing purposes);
see also Colston, 4 F.4th at 1187-88 (“The state of mind necessary
for a § 846 charge is the same as that required for a § 841(a)(1)
charge: the defendant must [conspire to] knowingly possess, and
intend to distribute, a controlled substance, but need not know
which substance it is.”).
On appeal, Swanson never cites to this Court’s decisions ad-
dressing the
mens rea element in 21 U.S.C. §§ 841 and 846. Swan-
son contends, instead, that this appeal is governed by the Supreme
Court’s decision in
Rehaif v. United States, 139 S. Ct. 2191 (2019).
In
Rehaif, the Supreme Court considered a defendant’s challenge
to his conviction for unlawful possession of a firearm under 18
U.S.C. §§ 922(g) and 924(a)(2). The Supreme Court concluded that
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6 Opinion of the Court 21-10966
-- to obtain a conviction for unlawful possession of a firearm under
those statutes -- the government had to “prove both that the de-
fendant knew he possessed a firearm and that he knew he belonged
to the relevant category of persons barred from possessing a fire-
arm.”
Id. at 2200.
Rehaif addressed only prosecutions under 18 U.S.C. §§
922(g) and 924(a)(2): the opinion and decision says nothing about
21 U.S.C. §§ 841(a) or 846. Given the different statutes involved in
Rehaif, we cannot conclude that
Rehaif controls the outcome of
this appeal. Nor did
Rehaif overrule or abrogate our then-existing
decision in
Gomez. Our decision in
Gomez and our post-
Rehaif
decisions in
Colston and in
Achey are binding precedent.
See
United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (under
our prior-panel-precedent rule, we are bound by a prior panel’s de-
cision “unless and until it is overruled or undermined to the point
of abrogation by the Supreme Court or by this court sitting
en
banc.”);
see also United States v. Kaley, 579 F.3d 1246, 1255 (11th
Cir. 2009) (for purposes of our prior-panel-precedent rule, “the Su-
preme Court decision ‘must be clearly on point’” and must
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21-10966 Opinion of the Court 7
“actually abrogate or directly conflict with, as opposed to merely
weaken, the holding of the prior panel.”).
Swanson also seems to argue that the district court’s jury in-
structions -- which referred expressly to an unlawful plan “to pos-
sess fentanyl” -- imposed an additional requirement that the gov-
ernment prove Swanson knew the identity of the drug involved in
his offense.2 We reject this argument. “[W]hen a jury instruction
sets forth all the elements of the charged crime but incorrectly adds
one more element, a sufficiency challenge should be assessed
against the elements of the charged crime, not against the
2 The district court instructed the jury that it could find Swanson guilty only if
the government proved beyond a reasonable doubt these facts:
(1) two or more people in some way agreed to try to accom-
plish a shared and unlawful plan
to possess fentanyl;
(2) [Swanson] knew the unlawful purpose of the plan and will-
fully joined in it; and
(3) the object of the plan was to possess with the intent to dis-
tribute
more than forty grams of fentanyl.
(emphasis added).
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8 Opinion of the Court 21-10966
erroneously heightened command in the jury instruction.”
Musac-
chio v. United States, 577 U.S. 237, 243 (2016).
The government was not required to prove that Swanson
knew that the drug involved in his offense was fentanyl. The dis-
trict court committed no error in denying Swanson’s motion for a
judgment of acquittal.
AFFIRMED.
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