In United States v. Achey, No. 18-11900 (Nov. 21, 2019) (Robreno, William Pryor, Jill Pryor), the Court affirmed the defendant's conviction for conspiracy to distribute a controlled substance.
The defendant argued that the evidence was insufficient because the government was required to prove that he conspired to distribute a specific controlled substance, but at trial it proved only that he distributed a controlled substance in general. The Court rejected that argument. The Court held that, under 21 U.S.C. 841(a)/846, the government was generally required to prove a conspiracy to distribute only a generic controlled substance; the type of controlled substance was not an element of the offense but was relevant only for sentencing purposes under 841(b). While the government must prove the specific type of drug when it is charged as an element in the indictment, the indictment's reference to a specific drug here was fairly read as relevant only for sentencing purposes, as evidenced by the word "involving" and a citation to 841(b). And, on the particular facts of this case, the Court found sufficient evidence of a conspiracy to distribute a controlled substance in general.