21 U.S.C. § 846

Elements

  1. Identified offense in Subchapter I

    to commit any offense defined in this subchapter

    Import/export conspiracies under section 963 are not automatically section 846 offenses. Drug type/quantity and defendant-specific penalty findings require the object statute and applicable circuit rules; none is imposed here as a universal element of all section 846 offenses.

  2. Agreement of two or more persons to the unlawful object

    conspires

    A buyer-seller transaction alone does not establish agreement to a further distribution conspiracy. Repetition/quantity and coordinated dealings can support the inference; no mechanical transaction-count rule is asserted.

  3. Knowledge of the unlawful agreement and objective

    conspires

    Knowing that others commit drug crimes does not itself establish that this defendant chose to join. Culpability as to the substance follows the chosen object offense; general association with offenders is insufficient.

  4. Knowing and voluntary participation in the agreement

    conspires

    Potter reconciles two- and three-part formulations. Participation distinguishes intentional joinder from mere presence; it cannot resurrect the overt-act requirement rejected by Shabani. Separate knowledge and volition are required, without an additional universal act requirement.

  5. Intent to commit the identified object offense

    attempts

    Judicial interpretation supplies the attempt test missing from enacted text. Intent must target the particular object, including intent to distribute where that is the object; awareness that a transaction might occur is insufficient.

  6. Conduct beyond preparation strongly corroborating intent

    attempts

    (formerly `variant preparation/insufficient`) Joyce found travel, available money and preliminary dealings insufficient on its record when the defendant refused the proposed purchase before a substantial step. (formerly `variant objective-corroboration/equivocal`) Oviedo reversed where selling a nonnarcotic substitute and other acts were equivocal under the Fifth Circuit test; intent alone cannot supply the act. These are circuit-specific applications, not universal rules that travel never suffices, abandonment excuses an already completed attempt, or sham drugs always make attempt impossible. Assess intent and step together in context.

  7. Object-offense penalty incorporation

    shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

    Consequence after offense proof, not a universal extra liability conjunct. The 1988 amendment replaced the earlier maximum-only formula. Use current object-offense penalty law and offense-date rules; this node supplies no blanket quantity-attribution rule.

  8. Withdrawal before the applicable limitations period

    conspires

    Smith, 568 U.S. 106, 110-14 (2013), is judicial interpretation applied to section 846 and RICO conspiracies, not an exception written into section 846. Defendant bears withdrawal by a preponderance; affirmative disavowal/defeat of the conspiracy is required, not mere inactivity. Government still must prove a timely continuing conspiracy when limitations is raised. The formula negates this combined time-bar defense, not withdrawal standing alone; termination, tolling, waiver, and offense-specific limitations must be assessed separately.

Cases

  1. United States v. Guzman-Ortiz 365 F. Supp. 3d 215 (2019)

    Post-verdict Rule 29 motion for judgment of acquittal on conspiracy count (result: claimant-lost)

  2. United States v. Delgado 367 F. Supp. 3d 286 (2019)

    Post-verdict Rule 29 motion for judgment of acquittal on multi-count drug and sex trafficking indictment; denied as to the § 846 count (Count 6) (result: claimant-won)

  3. United States v. Oviedo 525 F.2d 881 (1976)

    Appeal from attempted distribution conviction (result: claimant-lost)

  4. United States v. Joyce 693 F.2d 838 (1982)

    Sufficiency appeal from attempted possession conviction (result: claimant-lost)

  5. United States v. Lyle 919 F.3d 716 (2019)

    criminal appeal from conviction for conspiracy to distribute and possess with intent to distribute methamphetamine (21 U.S.C. § 846); sufficiency of conspiracy evidence affirmed (result: claimant-won)

  6. United States v. Moreno 922 F.3d 787 (2019)

    criminal appeal from conviction for conspiracy to possess narcotics with intent to distribute (21 U.S.C. § 846); sufficiency of evidence affirmed against buyer-seller challenge (result: claimant-won)

  7. U.S. v. Montijo-Dominguez 922 F.3d 1071 (2019)

    Criminal appeal from convictions for conspiracy to possess with intent to distribute cocaine (result: claimant-won)

  8. United States v. Potter 927 F.3d 446 (2019)

    Jury conviction sufficiency appeal on methamphetamine conspiracy (result: claimant-won)

  9. 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)