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.
