In United States v. Castro Alvarez, --- F.4th ---, No. 24-1921 (9th Cir. 2026), the Court vacated the sentence and remanded, in a case in which a jury found Luis Miguel Castro Alavez guilty of one count of attempted possession with intent to distribute 500 grams of a mixture containing methamphetamine and one count of conspiracy to possess 500 grams of a mixture containing methamphetamine.
Castro Alvarez "argues that his conviction and sentence for attempted possession of a specific drug type and quantity should be reversed under United States v. Hunt, 656 F.3d 906 (9th Cir. 2011), because the district court improperly instructed the jury that 'the government does not have to prove that [Castro Alavez] knew that the controlled substance was methamphetamine or knew the quantity of methamphetamine.' We agree in part. To impose the heightened penalty prescribed by § 841(b)(1)(A)(viii), the government must prove that Castro Alavez intended to possess 500 grams of a methamphetamine mixture. On the facts of this case, the district court’s erroneous jury instruction was not harmless. We therefore vacate Castro Alavez’s sentence for attempted possession of a controlled substance, but not his conviction."
The Sixth Amendment and Due Process Clause “require[] that each element of a crime be proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 104 (2013). “[A]ny ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed’”—such as drug type and quantity under § 841(b)(1)—constitute “elements of the crime” that the government must prove to the jury beyond a reasonable doubt. Id. at 111 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). We applied these principles in Hunt and held that, to impose a heightened penalty under § 841(b)(1) based on a defendant’s attempted possession of a particular type and quantity of controlled substance, the government must prove that the defendant intended to possess the specified drug type and quantity. 656 F.3d at 913. Castro Alavez argues that we must vacate his sentence under Hunt. We agree.In short, even if a substantive offense lacks an intent requirement, an attempt to commit that offense requires specific intent. Hunt applied this longstanding mens rea requirement to attempt under § 841(b)(1), and it controls here. The district court thus erred by instructing the jury that the government need not prove that Castro Alavez intended to possess 500 grams or more of a methamphetamine mixture. This error was not harmless. 1 We thus vacate Castro Alavez’s sentence for attempted possession of a controlled substance and remand for resentencing.Hunt’s reasoning is not clearly irreconcilable with Collazo. Collazo rests on the principle that conspiracy requires no greater level of intent than the underlying crime. But that principle does not apply to attempt. While conspiracy demands “proof of the mens rea essential for conviction of the substantive offense itself,” Baker, 63 F.3d at 1493, attempt requires specific intent even when the underlying crime does not, see Gracidas-Ulibarry, 231 F.3d at 1193. This distinction makes sense.In sum, Collazo does not apply here, and we are bound by Hunt.
Next, "[a]t trial, the government called Detective Kelly Moniz as an expert witness on drug trafficking methods and valuation. Detective Moniz testified that the drawings seized from Castro Alavez’s bag depicted Jesus Malverde and Santa Muerte, and that these are Mexican patron saints that drug traffickers pray to for protection, wealth, abundance, and silence. Castro Alavez argues the district court plainly erred by admitting this testimony."
When law enforcement officers are offered as experts, “reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind [the testimony].”Because the reliability analysis “is a malleable one tied to the facts of each case,” district courts have “broad latitude” to decide how to test an expert’s reliability. United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) (citation modified). But they “do not have discretion to abandon the gatekeeping function altogether.” Id. (citation modified). Here, the district court neglected its gatekeeping role when it allowed Detective Moniz to testify about religious iconography purportedly associated with drug trafficking.Detective Moniz has twenty years of experience as a law enforcement officer and has investigated more than 300 narcotics-related cases. He no doubt has sufficient knowledge and experience to qualify as an expert in drug valuation and drug trafficking methods. But that expertise, alone, does not qualify him to testify about every matter remotely related to drug trafficking.Detective Moniz’s minimal exposure to drug-related religious iconography rendered his opinion unreliable. See ValenciaLopez, 971 F.3d at 900. We thus hold that the district court erred by allowing him to testify on the subject.
