This is an important opinion regarding conspiracy jurisprudence and sentencing.

US v. Collazo, No. 15-50509 (12-2-20)(en banc). Conspiracy, Knowledge, and Apprendi is the subject of this en banc appeal. The case involves conspiracy convictions under 21 USC 846 and sentencing enhancements under 841(b)(1)(A)-(B). The issue is the mens rea or mental state of those conspiring. The majority (Ikuta writing) reaffirms “conspiracy” as requiring an agreement between a defendant and another person to commit an offense (841—possession with intent) and the defendant had the intent for the underlying offense. While the government must prove the drugs, and amount, it need not prove the defendant knew of that drug or amount.  The majority focuses on conspiracy as an agreement, and not the knowledge of the scope and any joint undertaking. It rejects prior precedent and the Guidelines formulation that required, for relevant conduct, foreseeable acts and jointly undertaken. The 9th uses the mental state (knowingly) of the substantive offense and applies it to the conspiracy.  The 9th joins the 6th and is counter to the 1st, 3d, 4th, 5th, 7th, 8th, 10th, and DC. There is a circuit conflict and a possible cert.

The dissenters (Fletcher with others) argue that it is presumed that Congress requires a culpable mens rea to each element of an offense, and that would apply to a conspiracy that carries enhanced penalties under 841. Apprendi requires such proof.

The majority opinion does contain a useful overview of the 9th’s conspiracy law, and development. It is a good starting point.

Spirited fight by Ben Coleman.  The 9th defenders weighed in with an amicus.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/02/15-50509.pdf