Whether the knowingly mens rea in the federal drug statutes applies to the elements of drug type and quantity

QUESTIONS PRESENTED The Ninth Circuit panel below followed a recent, 6-5 en banc opinion holding that the knowingly mens rea in the federal drug statutes does not apply to the elements of drug type and quantity required to trigger significant mandatory minimum and enhanced maximum sentences. See United States v. Collazo, 984 F.3d 1308 (9" Cir. 2021) (en banc). The five dissenting judges in Collazo explained that the majority’s conclusion was inconsistent with the presumption of mens rea, as explained by Justice Kavanaugh in United States v. Burwell, 690 F.3d 500, 527-53 (D.C. Cir. 2012) (en banc) (Kavanaugh, J., dissenting), and otherwise conflicted with a wealth of this Court’s precedent culminating in Rehaif'v. United States, 139 S. Ct. 2191 (2019). This petition presents the important statutory construction question that divided the en banc panel in Collazo and a related constitutional question. The questions presented are: 1. Whether the knowingly mens rea in the federal drug statutes, 21 U.S.C. §§ 841, 960, applies to the elements of drug type and quantity that establish mandatory minimum and enhanced maximum sentences. 2. If the answer to question | is no, whether a strict liability element that converts a misdemeanor with a one-year maximum sentence into a felony with a ten-year minimum and a life maximum violates the Fifth and Sixth Amendments. i STATEMENT OF RELATED CASES ¢ United States v. Nancy Cole, No. 17CR4414-CAB, U.S. District Court for the Southern District of California. Judgment entered March 22, 2019. ¢ United States v. Nancy Cole, No. 19-50104, U.S. Court of Appeals for the Ninth Circuit. Judgment entered February 9, 2021. ii