21 U.S.C. § 841

Elements

  1. Mens rea: "knowingly or intentionally" (including knowledge that the substance is a controlled substance)

    it shall be unlawful for any person knowingly or intentionally-

    Under McFadden v. United States (576 U.S. 186 (2015)), the government must prove the defendant knew he was dealing with "a controlled substance" (either by knowing the substance is listed on the federal schedules, or by knowing the physical identity/chemical makeup of the substance even if unaware it is scheduled).

  2. Prohibited act under § 841(a)(1): manufacture, distribute, or dispense

    to manufacture, distribute, or dispense

    Branches into `act.manufacture`, `act.distribute`, and `act.dispense` (or the possession-with-intent alternative via `possession` + `intent-to-distribute`).

  3. Possession (actual, constructive, sole, or joint dominion and control)

    or possess with intent to manufacture, distribute, or dispense

    Constructive possession requires power and intention to exercise dominion and control over the contraband (directly or through others); mere proximity, association, or unconsummated inspection prior to payment does not suffice.

  4. Specific intent to manufacture, distribute, or dispense the possessed controlled substance

    with intent to manufacture, distribute, or dispense

    Routinely inferred from distribution-level quantity, purity, street value, packaging materials, scales, ledgers, firearms, or absence of personal-use paraphernalia.

  5. Controlled substance (21 U.S.C. §§ 802(6), 812 Schedules I-V) or counterfeit substance (§ 841(a)(2))

    a controlled substance; or

    Includes controlled substance analogues treated as Schedule I under 21 U.S.C. § 813 when intended for human consumption (McFadden v. United States, 576 U.S. 186 (2015)).

  6. Authorization exception ("Except as authorized by this subchapter") for registered practitioners/handlers

    Except as authorized by this subchapter,

    Under 21 U.S.C. § 885(a)(1), the government need not negative any statutory exemption or exception in the indictment or until the defendant satisfies the burden of going forward with evidence of registration/authorization; once produced by a registrant, Ruan (597 U.S. 450 (2022)) requires the government to prove knowing/intentional lack of authorization beyond a reasonable doubt.

  7. Partial penalty-tier drug type and quantity table (selected § 841(b)(1)(A)-(D) hook)

    1 kilogram or more of a mixture or substance containing a detectable amount of heroin;

    PARTIAL_THRESHOLD_TABLE: this entry anchors the § 841(b)(1) drug-specific threshold matrix without pretending that one heroin threshold quote enumerates every listed substance and tier. Under Chapman v. United States (500 U.S. 453 (1991)), "mixture or substance" includes the carrier medium in which the drug is marketed/consumed, but not unusable waste water or packaging containers that must be separated before use.

  8. Death or serious bodily injury results from the use of such substance (§ 841(b)(1)(A)-(C) 20-year mandatory minimum)

    if death or serious bodily injury results from the use of such substance

    Under Burrage v. United States (571 U.S. 204 (2014)), "results from" requires actual ("but-for") causation (at least where the distributed drug was not an independently sufficient cause of death), rejecting "contributing cause" instructions.

  9. Recidivist enhancement for prior conviction for a serious drug felony or serious violent felony (§ 841(b)(1), 21 U.S.C. § 851)

    after a prior conviction for a serious drug felony or serious violent felony has become final

    Governed by the notice and information procedures of 21 U.S.C. § 851 (and exempted from Apprendi's jury requirement under Almendarez-Torres v. United States, 523 U.S. 224 (1998)).

  10. Cross-statute route alias: see separate aiding-abetting (§ 2) and x-conspiracy-846 (§ 846) routes

    any person who violates subsection (a) of this section

    Alias retained for existing CASE vocabulary only; it is not a § 841 element. Do not conflate separate § 2 aiding-and-abetting and § 846 conspiracy routes.

  11. Aiding and abetting route under 18 U.S.C. § 2 (cross-statute)

    any person who violates subsection (a) of this section

    Cross-statute route only; § 2 supplies the aiding theory and § 841 supplies the substantive offense.

  12. Drug conspiracy route under 21 U.S.C. § 846 (cross-statute)

    any person who violates subsection (a) of this section

    Cross-statute route only; § 846 is distinct from aiding under § 2 and from substantive § 841(a)(1).

  13. Categorical / modified categorical comparison of state drug offense to 21 U.S.C. § 841 (INA / ACCA / Guidelines)

    to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

    Frequently litigated when § 841 serves as the generic federal comparator in immigration (Moncrieffe), Armed Career Criminal Act, or Sentencing Guidelines (U.S.S.G. §§ 2L1.2, 4B1.2) cases.

  14. Continuing-offense venue for § 841(a)(1) possession with intent to distribute / distribution (18 U.S.C. § 3237(a))

    to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

    Under 18 U.S.C. § 3237(a), possession with intent to distribute and distribution across multiple districts are continuing offenses prosecutable in any district in which the offense was begun, continued, or completed.

  15. Fifth Amendment Due Process / Equal Protection challenge to carrier-medium weight sentencing (Chapman)

    1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);

    Rejected in Chapman v. United States (500 U.S. 453 (1991)): Congress had a rational basis for tying penalty tiers to street weight of the mixture or substance containing a detectable amount of the drug.

  16. Fifth Amendment void-for-vagueness challenge to "mixture or substance" or analogue provisions

    1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);

    Evaluated as applied to the facts of the case because § 841 implicates no First Amendment freedoms.

  17. Rule of lenity in construing ambiguous penalty provisions of § 841(b)

    any person who violates subsection (a) of this section shall be sentenced as follows:

    Invoked when statutory text of § 841(b) is grievously ambiguous (declined in Chapman where "mixture or substance" was held unambiguous; reinforced in Burrage where "results from" was given its ordinary but-for meaning).

  18. Affirmative defense of entrapment (government inducement + lack of predisposition)

    it shall be unlawful for any person knowingly or intentionally-

    Requires showing government inducement of the crime plus absence of predisposition on the part of the defendant to engage in the criminal conduct (Mathews v. United States, 485 U.S. 58 (1988)).

Cases

  1. United States v. Tiangco 225 F. Supp. 3d 274 (2016)

    criminal; jury convicted on § 846 conspiracy (Count 1) and § 841 distribution / possession with intent to distribute 50 g+ methamphetamine (Count 2); defendant's post-trial motion for acquittal (Rule 29) or new trial (Rule 33) denied by the trial judge (result: claimant-won)

  2. United States v. Vera 701 F.2d 1349 (1983)

    criminal; jury convictions (846 conspiracy, 841(a)(1) possession with intent and distribution of quaaludes); three defendants appeal; Vera and Posada challenge sufficiency of the evidence of knowledge, plus voir dire, prosecutor comment, severance; Romero challenges only suppression (result: claimant-won)

  3. United States v. Prieto-Tejas 779 F.2d 1098 (1986)

    criminal; jury convictions for possession of cocaine with intent to distribute, 846 conspiracy, and 18 U.S.C. 924(c)(2) firearm; defendant appeals sufficiency of the evidence on each count (result: claimant-won)

  4. United States v. Griffin 150 F.3d 778 (1998)

    criminal; bench trial conviction for possession of cocaine with intent to distribute; on appeal defendant challenges (besides suppression and Guidelines rulings) the sufficiency of the evidence that he knowingly possessed the cocaine found in his vehicle; conviction and sentence affirmed (result: claimant-won)

  5. United States v. Quintanar 150 F.3d 902 (1998)

    criminal; jury conviction for possession of methamphetamine with intent to distribute; defendant challenges sufficiency of evidence on constructive possession; conviction reversed (result: claimant-lost)

  6. United States v. Lazcano-Villalobos 175 F.3d 838 (1999)

    criminal; jury conviction for possession with intent to distribute cocaine; defendant appeals sufficiency of evidence on knowing constructive possession of drugs in hidden vehicle compartment (and a Rule 404(b) ruling); conviction affirmed (result: claimant-won)

  7. United States v. Jenkins 175 F.3d 1208 (1999)

    criminal; jury conviction for possession with intent to distribute cocaine base and marijuana; defendant challenges sufficiency of evidence on knowing constructive possession and intent to distribute; convictions affirmed (result: claimant-won)

  8. United States v. Vincent 20 F.3d 229 (1994)

    criminal; jury conviction on one count charging both distribution and possession with intent to distribute marijuana, plus two firearm counts (18 U.S.C. 924(c), 922(g)(3)); defendant appeals sufficiency and Sentencing Guidelines application (result: claimant-won)

  9. United States v. Nordby 225 F.3d 1053 (2000)

    criminal; direct appeal from resentencing after jury conviction for marijuana manufacture, possession with intent to distribute and conspiracy; defendant challenges (plain-error review) the ten-year sentence imposed under § 841(b)(1)(A)(vii) on a judge's preponderance finding of drug quantity; sentence vacated and remanded for resentencing within the five-year maximum supported by the verdict (result: claimant-lost)

  10. United States v. Hishaw 235 F.3d 565 (2000)

    criminal; jury conviction on one count of possession of crack with intent to distribute (hung on six other drug counts); defendant appeals suppression ruling, Apprendi drug-quantity error (plain-error review) and relevant-conduct sentencing (result: claimant-won)

  11. United States v. Strayhorn 250 F.3d 462 (2001)

    criminal; guilty plea to a § 846 conspiracy to possess with intent to distribute and to distribute "a measurable quantity" of marijuana; defendant appeals the 120-month mandatory minimum imposed under § 841(b)(1)(B) on the district judge's preponderance finding of drug quantity (Apprendi); sentence vacated and remanded for resentencing (result: claimant-lost)

  12. United States v. Soler 275 F.3d 146 (2002)

    criminal; jury convictions for distribution of heroin, death resulting (count 1), possession with intent to distribute (count 3) and § 846 conspiracy (count 5), plus two § 860 schoolyard counts; defendant argues § 841(b)(1)(C) requires that death be reasonably foreseeable and that the conspiracy evidence was insufficient; §§ 841/846 convictions affirmed, § 860 convictions reversed (result: claimant-won)

  13. United States v. Kitchen 57 F.3d 516 (1995)

    criminal; jury conviction for felon in possession of two handguns found in the bedroom of his girlfriend's house (plus a 21 U.S.C. 841 cocaine count annotated separately); defendant appeals sufficiency of the evidence on possession only; firearm conviction affirmed (result: claimant-won)

  14. United States v. Orozco 700 F.3d 1176 (2012)

    criminal; jury conviction on two counts of possession of cocaine / cocaine base with intent to deliver; defendant appeals denial of suppression and sufficiency of evidence on constructive possession and intent to distribute; conviction affirmed, remanded for the district court to consider resentencing on the cocaine-base count under the Fair Sentencing Act (Dorsey) (result: claimant-won)

  15. United States v. Solis 915 F.3d 1172 (2019)

    criminal; jury convictions for conspiracy (§ 846) and possession with intent to distribute methamphetamine; on appeal defendant challenges sufficiency of the evidence of knowing (constructive) possession and the refusal of a "mere presence" instruction; drug convictions affirmed (separate misprision conviction reversed on Fifth Amendment grounds) (result: claimant-won)

  16. United States v. Seals 915 F.3d 1203 (2019)

    criminal; jury convictions for distribution of heroin and fentanyl resulting in serious bodily injury and for possession with intent to distribute; Rule 29 motions denied; on appeal defendant challenges sufficiency of the evidence of but-for causation under Burrage; affirmed (result: claimant-won)

  17. U.S. v. Druger 920 F.3d 567 (2019)

    criminal; jury conviction (count seven) for possession with intent to distribute methamphetamine; appeal from denial of motion for judgment of acquittal; defendant concedes possession and challenges only sufficiency of the evidence of intent to distribute; affirmed (result: claimant-won)

  18. United States v. Graves 925 F.3d 1036 (2019)

    criminal sentencing appeal; mandatory life sentence under 21 U.S.C. §§ 841(b)(1)(A) and 851 based on two prior "felony drug offense" convictions; defendant challenges whether a California Penal Code § 4573.6 (inmate drug possession) conviction qualifies under the categorical approach; sentence vacated and remanded (convictions affirmed in a separate memorandum disposition) (result: claimant-lost)

  19. United States v. Daniels 930 F.3d 393 (2019)

    criminal; jury convictions for conspiracy to distribute cocaine (count 1), distributing crack cocaine (count 2) and aiding and abetting possession with intent to distribute crack cocaine (count 3); defendant challenges suppression, a limine ruling, confrontation, and sufficiency of the evidence on all counts (de novo); affirmed (result: claimant-won)

  20. United States v. Mazzulla 932 F.3d 1091 (2019)

    criminal; jury convictions for conspiracy (§ 846), possession with intent to distribute methamphetamine (count II, 49 grams) and distribution / possession with intent (count V); appeal raises suppression, Franks, in camera review, Rule 403, refusal of a simple-possession lesser-included instruction, and a general sufficiency challenge; affirmed (result: claimant-won)

  21. Chapman v. United States 500 U.S. 453 (1991)

    criminal; sentencing after conviction for LSD distribution, affirmed by CA7 en banc; certiorari by defendants on whether carrier weight counts toward the mandatory-minimum threshold (result: claimant-won)

  22. Burrage v. United States 571 U.S. 204 (2014)

    criminal; jury conviction on heroin distribution with death-results enhancement, affirmed by CA8; certiorari by defendant on the causation standard for "results from" (result: mixed)