United States v. Castro Alavez - Conviction Affirmed in Part, Vacated in Part

FOR PUBLICAT ION UNITE D STATES COURT OF APPE ALS FOR THE NI NTH CIR CUIT UNITED STATES OF AMER ICA, Plaintiff - Appellee, v. LUIS MIGUEL CAS TRO ALAVEZ, Defendant - Appellant. No. 24-1921 D.C. No. 1:23- cr -00055- SOM -1 OPINION Appeal from the United States D istrict Court for the District of Hawa ii Susan O. Mollway, District Judge, Presiding Argued and Submitted June 3, 2025 Honolulu, Hawaii Filed February 20, 2026 Before: Will iam A. Fletcher, Morgan B. Christen, and Roopali H. Desai, Circuit Judges. Opinion by Judge Desai

2 USA V. C ASTRO A LAVEZ SUMMARY * Criminal Law The panel affirm ed in par t and v acated in p art the d ist rict court’s judgment, and remanded, in a c ase 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 on e count of conspiracy to possess 500 grams of a mixture containing methamphe tamine. Castro Alavez argued that his conviction and se ntence for attempted possession of a spec ific drug type and quantity should be reversed under United States v. Hunt, 656 F.3 d 906 (9th Cir. 2011), because the district court improperly instructed the jury that “the governme nt does not have to prove that [Castro Alavez] knew that the controlled substance was methamphetamine or knew the quantity of metham phetami ne.” The panel agreed in part. To i mpose the heightened penalty prescribed by 21 U.S.C. § 841(b)(1) (A)(viii), the government must prove that Castro Alavez intended to possess 500 grams of a methamphe tamine mixture. On the facts of this case, the district court’s erroneous jury instruction was not harmless. The panel declined to e xtend to the attempt context a line of conspiracy cases that require no heightene d mens rea beyond what the underlying crime requires. The panel therefore vacated C astro Al avez’s s entence for at tempt ed pos sessi on of a controlled substance, but not his conviction. * This s ummary consti tutes no par t of the opi nion of the c ourt. It ha s been pre pared by c ourt staff for the convenie nce of t he reader.

USA V. C ASTRO A LAVEZ 3 Castro Alavez als o argu ed that h is attem pt convict ion and conspiracy conviction should be vacated because the district co urt improperly admitted relig ious images and expert testimony about “na rco saints.” While the expert testimony did not satisfy Federal Rule of Evidence 702, the panel he ld that the distr ict cour t’s error in admitting this evidence was ha rmless. Th e panel th us affi rmed Castro Alavez’s convictions. COUNSEL Michael F. Albane se (argued), Sara Ayabe, and Gregg P. Yates, Assistant United States Attorneys; Clare E. Connors, United State s Attorney; Offic e of the United States Attor ney, United State s Departme nt of Justice, Hono lulu, Haw aii; for Plaintiff - Appellee. Georgia K. McMillen (argued), Law Office of Georgia K. McMillen, Wailuku Maui, Hawaii, for Defendant -Appellant.

4 USA V. C ASTRO A LAVEZ OPINION DESAI, Circuit Judge: A jury found Luis M iguel C astro Al avez (“ Cast ro Alavez ”) guilt y of one count of attempted posse ssion with intent to distribute 500 gra ms of a mixture containing methamphe tamine and one count of conspirac y to possess 500 grams of a mixture containing methampheta mine, both in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A) (viii). Cast ro Al avez app eals on two grounds. First, he argues tha t his conviction and sen tence fo r attempted possession of a specific drug type and quantity should be reversed under United States v. Hunt, 656 F.3d 906 (9th Cir. 2011), becaus e the district court improperly instructed the jury that “the governme nt does not have to prove th at [Cast ro Al avez] kn ew that the controlled substance was methamphetamine or knew the quantity of metham phetami ne.” We agre e in part. To impose the heightened pen alty prescribed by § 841(b)(1)(A)(vi ii), th e government must prove that Castro Alavez int ended to possess 500 grams of a m ethamphetamine mixture. On the facts of t his case, the district court’s erroneous jury instr uction was not harmless. We t herefore vacate Castro Alavez’s sentence for attempted possession of a controlled substance, but not his conviction. Second, Castro Alavez contends that his attempt conviction and conspiracy conviction should be vacated because th e distr ict co urt improperly admitt ed religious images and expert testimony about “narco sai nts.” While the expert testimony did not satisfy Federal R ule of Eviden ce 702, we nonetheless hol d that the district court’s error in

USA V. C ASTRO A LAVEZ 5 admitting th is evidence was harm less. We thus affirm Castro Alavez’s co nvicti on s. BACKGROUND Castro Alavez, a nat ive an d citizen of Mex ico, entered the United States in 2017 and lived in California u ntil 2023. On June 15, 2023, Castro Alavez traveled to Hilo, Hawaii and rented a studio apartment from Diana Machado. Castro Alavez’s vacat ion rent al was on the s ame pr opert y as Machado’s residen ce. On June 28, 2023, the postal service de livered a packag e addressed to “Ma r c o Alavez ” to Machado’s resid ence. Machado did not recognize the name on the p ackag e and became suspicious of its contents. Shortly after, Castro Alavez went to Machado’ s resi dence, p resumably to look for the packag e. When Machado opened the door, Castro Alavez saw the pa ckage sitting on her table and pointed at it saying, “Mine, mine.” Machado responded that the package belonged to her daughter. Castro Al avez left briefly but returned with tracking information indicating that he wa s expectin g a pack age an d ask ed wh ether sh e recei ved it. Machado told him that she did not receive his package but would let him know if she d id. After he left, Machado opened the package and discov ered a subs tance t hat f elt li ke “rock salt.” S uspecting that the substance could b e drugs, Machado took the packag e to the police station and gav e it to Special Agent Ryan Faulkner (“Agen t Faul kner”) of Hom eland Secu rity Investigations. Agent Faulkner obtained a search warrant and tested the pack age for narcotics, which revealed 4,970.92 grams of a mixture or substance containing a detectabl e amo unt of m etham phetam ine.

6 USA V. C ASTRO A LAVEZ P olice ar rested Cas tro Alavez, and Ag ent Faulkner interv iewed him at the police station. In the inte rview, Castro Alavez expl ained that he was hi red b y an unknown man at a nightclub in Riverside, California, who claim ed he co uld help Castro Alav ez get out of poverty if Castro Alavez agreed t o pick up an unspecified item and give it to another individual. The job also require d Cast ro Al avez to deposit money int o a designated bank a ccount. The m an assu red Castro Alavez that he would not be doing anything wrong but warned that, if Castro Alavez agreed to the work, there would be “no going back” a nd that if Castro Alavez pulled “a fast one, ” C astro Alav ez and his fa mily would be in danger. Castro Alavez accepted the job and w as sent to H awaii. There, an unknown man gave Castro Alavez $8,000 to $10,000 and instructed him to wire t he money to a bank account i n M exico. Cast ro Al avez told Agent Fau lkner that he knew the money was drug money but felt that he was in too deep. Castro Alavez mo ved in to Machado’s vacation rental in Hawaii and gave M ach ado’s add ress to the people who recruited him. Castro Alavez explained to Agent Faulkner that he w as instructed to retrieve a delivery at t he vacati on rental and to give it to an individual who would come to pick it up. The same morning the packag e arri ved at Machado’s residenc e, Cast ro Alavez received a call notifying him t hat the package would arri ve soon. Castro A lavez stated in his intervie w that he knew the package likely contained drugs but did not know the type or quantity of drugs inside. Castro Alave z also conse nted to a s earch of hi s tw o cell phones, his shoulder bag, and the va cation rental. And he shared wi th Agent Faulkner the location of re ceipts f or

USA V. C ASTRO A LAVEZ 7 several wire t ransf ers to Mexi co, which investigators found during their search of the vacat ion rent al. Officers also found mes sages on C astro Alav ez’s cel l phones instructing hi m to wire large amounts of U.S. currency to Mexico and to conc eal money inside chocolate boxes before sending the boxes through the postal service. In addition, they disco vered two drawings fro m Cast ro Alavez’s shoulder bag, depicting Jesus Malverde and Santa Muerte, Mexican patron saints. Castro Al avez expl ained t hat the people who rec ruited him gave him t he Jesus Malve rde drawing in California and that the sai nt “helps the poor.” The government charged Castro Alavez with: (1) conspiracy to distribute and possess with intent to distribute 500 grams of a mixture containing methamphetamine in violation of 21 U.S.C. §§ 8 41(a)(1), 841(b)(1)(A)(viii), and 846 (count one); and (2) attempted possession with intent to distribute 500 grams of a mixture containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846 (count two). At trial, the district court ga ve the following jury instruc tion for attempted possession over Castro Alavez’s objection: If you find the defendant guilty of [attempted possession of a controlled substance], you are then to determine whether the government proved beyond a reasonable doubt that the controlled substance involved in the offense was 500 grams or more of a mixture or substance containing a detectable amount of methamphe tamine, its salts, isomers, and salts of its isome rs. Your de termination of weight must not include the weight of any

8 USA V. C ASTRO A LAVEZ packaging material. Your decision as to typ e of drug and weight must be unanimous. The government does not have to prove that the defendant knew that the controlled subst ance was m ethamp hetami ne or knew t he quantity of methamphetamine. The jury convicted Castro Alavez on both counts. The district co urt sentenc ed him to concurrent 120-month prison terms on each count, followed by five years of supervised releas e. Castr o Alave z timely appe als. STANDARD OF RE VIEW We review “de novo whether the jury instructions accurat ely de fine the e lement s of a st atutory offens e.” United States v. Hicks, 2 17 F.3d 1038, 1045 (9th Cir. 2000). While we ordinarily review a district court’ s evidentiary rulings for an abuse of discretion, United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003), we review u npreserv ed objections for plain error, Tan Lam v. City of Los Banos, 976 F.3d 986, 1006 (9th Cir. 2020). DISCUSS ION I. The governme nt must prov e a def endant’s i ntent to posses s the spec ified drug ty pe and q uantit y to impose an incre ased pena lty based o n the def endant ’s attempted possession of a particular type and quantity of cont rolled s ubstance. 21 U.S.C. § 841(a) mak es it unlawful for a person to “knowingly or intentionally” possess with the intent to distribute a controlled substance. Section 841(b)(1) sets out separate and increasing penalties depe nding on the type and quantity of the controlled substanc e. Relevant here,

USA V. C ASTRO A LAVEZ 9 § 841(b)(1)(A)(viii) imposes a mandatory minimum sentence of t en years im prisonment if the offense involves “500 grams or more of a mixture or substance containing a detectabl e amo unt of metham phetam ine.” Sectio n 846 provides that “[a]ny person who attempts or conspires to commit any offense” under § 841(a) “shall be subj ect to the same penal ties as those p rescri bed for the o ffense. ” The Sixth Amendment and Due Process Clause “require[] that each element of a crime be proved to the jury beyond a reasonable doubt.” Alleyn e v. Uni ted St ates, 570 U.S. 99, 104 (2013). “[A]ny ‘ facts t hat incr ease the prescribed range of pe nalties to which a cr iminal d efendant is exposed ’”— such as drug type and quantity under § 841(b)(1)— constitute “el ements of the crime” th at th e government must prove to the jury beyond a r easonable doubt. Id. at 1 11 (quoting Apprendi v. New Jers ey, 530 U.S. 466, 490 (2000)). We appl ied these principles in Hunt and held that, to impose a heightened penalty under § 841(b)(1) based on a defe ndant’s attempted possession of a particular type and quantity of controlled substance, the government must prove that the defendant intended to po ssess the specifi ed drug type and quantity. 656 F.3d at 913. Castro Alave z argues that we must vacate h is s enten ce under Hunt. We agr ee. A. Hunt controls our analysis. In Hunt, afte r police inter cepted a packag e and discovered that it contained about a kilogram of cocaine, the government charged the defendant with attempted possession of 500 grams or more of a mixture containing cocaine. Id. at 908 – 09. The defendant plea ded guilty without a plea ag reem ent to attempted possession of a c ontrolled substance but denied knowing the spec ific amount or type of

10 USA V. C ASTRO A LAVEZ drug. Id. at 9 09–10. The district court sentenced him t o 15 years in prison for attempting to pos sess cocaine in violation of §§ 846 and 841(b)(1)(C), a penalty provision that increas es the s tatuto ry maxi mum sen tence from a one- yea r term of impr isonment to a 20- year term for offenses involving specified drugs, including cocaine. Id. at 908, 910–11, 913, 916; co mpar e 21 U.S.C. § 841(b)(1)(C) with § 841(b)(3). We held that because t he drug type “support[ed] an increas e in th e maximu m stat utory s entence [the d efendant ] faced,” i t was an element of th e cri me the govern ment must prove beyond a reasonable doubt. H unt, 656 F.3d at 912 –13. Although the defendant admitted that he intended to posse ss a controlled substance, he did not admit to “attempt[ing] to posses s cocai ne.” Id. The facts to which th e defendant admitted in his guilty plea were t hus insufficient t o support a s entence under § 841(b)(1)(C). Id. at 913. Without “an explicit admission” or proof of intent, the drug type “could not be used to support an increase in the maximum statutory sentence. ” Id. at 912–13. We rejected the gover nment’s contention that it need only prove the defendant “‘knowingly’ attempted to possess cocaine. ” Id. at 912. “ While knowing possession is an element of the completed offense of possession with intent to distribute, attempted possession requires proof of intent, not knowledge.” Id. (citation s omitted); see also United States v. Gracidas-Ulibarry, 231 F.3d at 1188, 1196 (9th Cir. 2000) (en banc) (expl aining that “‘purpose’ corresponds to the concept of spec ific intent, while ‘knowledg e’ corresponds to general intent”). Thus, to obtain a sentence under § 841(b)(1)(C) for attempted possession of cocaine, “the government needed to prove that [the defendant] intended to possess cocaine.” Hunt, 656 F.3d at 91 2. And

USA V. C ASTRO A LAVEZ 11 because the government failed to do so, we vac ated the sentence. Id. at 91 6–17. B. Hunt is b uttressed by our p recedent holding tha t crimi nal a ttempt requi res speci fic inten t even when the underlyi ng crim e does not. We explored the mens rea require d for criminal attempt in Gracidas-Ulibarry. T here, w e consi dered what l evel o f intent the government must prove to convict a defendant of attempted illegal ree ntry under § 1326, when the unde rlying offense required a showing only of genera l intent and the statute did not otherwise specify an intent requirement. 231 F.3d at 1190. Our starting point was the common law, which defines attemp t as “the s pecific i nten t to eng age in crim inal co nduct and an overt act which is a substantial step towards committing the c rime.” Id. at 1192 (citation modified). This “accepted common law definit ion” under lies our rule that “Congre ss’ use of the term ‘a ttempts’ in a crimina l statute manifest[s] a require ment of specific intent to commit the crime att empted, even w hen t he statu te d[oes ] not co ntain an explicit inte nt require ment.” Id. (citing Unit ed St ates v. Hadley, 918 F.2d 848, 853 (9th Cir. 1990) and U nited States v. Sneezer, 900 F.2d 177, 179 (9th Cir. 1990)); see also Neder v. U nited Stat es, 527 U.S. 1, 21 (1999) (holding that when a term has a s ettle d common law meaning, “a court must infer, unless the statu te otherwise dictates, that Congress means to incorporate the established meaning” (citation modified)). By requir ing specific intent for atte mpt crimes, w e “resolve t he unce rtaint y [over ] whether the defendant’s purpose was indeed to engage in criminal, rather than innocent, conduct.” Gracidas-Ulibarry, 231 F.3d at 1193.

12 USA V. C ASTRO A LAVEZ And such “uncertainty is not present when the defendant has complet ed the un derl ying cri me, be cause th e com pleted act is itself culpable conduct.” Id. Thus, we h eld that attempted illegal reentry requires proof that the noncitizen “had the purpose, i.e., conscious desire, to reenter the United States without the express consent of the Attorne y General.” Id. at 1196. Thi s is true even though the substantive offense — illegal re entry — does not require either willfulness or an unlawful intent. Id. at 11 94–95. Our conclusion in Gracidas-Ulibarry w as not exceptional. Y ears earl ier, we required the government to prove a higher mens rea for attempt than for substantive offenses. See, e.g., United States v. Darby, 857 F.2d 623, 626 (9th Cir. 1988) (holding that attempted ban k robbery requires a specific intent to rob a bank, even though bank robbery i s a general in tent crime); Sneezer, 900 F.2d at 179 (holding that attempted sexual abuse under 18 U.S.C. § 2242 required a s peci fic inten t to com mit the cr ime even tho ug h § 2242 “itself d[id] not appear to include any element of specific intent”). And we have continued to require specific intent f or attempt crimes since Gracidas-Ulibarry. See, e.g., United States v. Ra mirez -Martinez, 273 F.3d 903, 914 (9th Cir. 2001) (holding that a ttempted unlawful transportation of noncitizens requires a “purpose, i.e., the conscious desire, to transport an undocumented [noncitizen],” even though “[a]ctual (completed) transporting” re quires only that the defendant act with “reckless disregard” of the no ncitizen’s status (citation modifie d)), overruled on other g rounds by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc). In short, ev en if a substantive offense lacks an intent requirem ent, a n attempt to commit that offense requires specific intent. Hunt applied this longstanding mens rea

USA V. C ASTRO A LAVEZ 13 requirem ent to attempt under § 841(b)(1), and it controls here. The distric t court thus erred by i n structing the jury that the government need not prove t hat Cas tro A lavez i ntended to possess 500 grams or more of a methamphetamine mixture. T his error was not harmless. 1 We thus v acate Castro Alave z’s sent ence for attempted possession of a controlled substance and remand for resentencing. 2 1 The gover nment doe s not arg ue harmles sness and there fore for feits t he issue. United Stat es v. Rodrigue z, 880 F.3d 1151, 1163 (9th Cir. 20 18). But eve n so, the errone ous ins tructions relieved t he govern ment of its burden to prove an element of the offense. See Dan g v. Cros s, 422 F.3d 800, 80 5 (9th C ir. 2005) (“In evaluati ng jur y inst ructions, prejudici al error resul ts when, l ookin g to the i nstructi ons as a whol e, the substance of the applicable law was not fairly and cor rectly covered.” (citation modified)). And this error likely affected the outcome because ther e is scant e vidence s uggesti ng Cas tro Alavez knew t he type and qua ntity of drugs inv olved. See id. at 811 – 12. 2 To the exten t Castro Alave z argues that th e district court’ s instruction al error war rants vac atur of his convict ion for at tempte d posse ssion of a controll ed substanc e, w e disagree. Drug type and quantity are elements of the “aggravated crime” cre ated by § 841(b)(1)(A)(vi ii), but they are not elements of the “core crime” set forth in §§ 841(a) and 846. S ee Alleyne, 570 U.S. at 113. The distri ct court proper ly instructed the jury on the c ore crime of attempte d pos sessi on of a control led sub stance, and the jur y found C astro Al avez guilty o f this offense. Thus, Castro Alave z is entitled on ly to resentencing. See United States v. Toliver, 351 F.3d 423, 43 1 (9th Ci r. 2003) (h olding tha t the gover nment’s fai lure to prove drug type and quantity did n ot enti tle the defendant s to a judgme nt of acquittal a nd that the district cour t was instead “restricted in the maximum sentence that it could imp ose”), abrogated on ot her gr ounds by Blakel y v. Washi ngton, 542 U.S. 296 (2004); s ee also Alleyne, 5 70 U.S. at 114 – 18 (vacat ing the defendant’s s entence fo r the aggravated crime of bra ndishing a firear m and remanding “ for re sentenci ng consis tent wit h the jury’s verdi ct” of guilt y as to t he core c rime of us ing or carrying a firearm); Unit ed State s v. Del gado - Ma rrero, 744 F.3d 167, 192 (1st C ir. 2014) (collecting cases establish ing that a defend ant with a

14 USA V. C ASTRO A LAVEZ II. W e declin e to ex tend our sep arat e line o f cases involving crim inal conspiracy to this context. To avoid Hunt, the government argues that United States v. Collazo, 984 F.3d 1308 (9th Cir. 2021) (en banc) overruled it. But Collazo —which addr essed th e crime o f conspi racy — did not expressly or impliedly overrule Hunt and, in fact, did not involve the same cr ime. S till, the government insists that Collazo control s because i ts reasonin g is “cl early i rre concilab le” wi th Hunt. “[W]here the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, . . . [we are] bound by the later and controlling authority, and should reject the prior circuit o pinio n as having been e ffectively overruled.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). But we remain “bound by our pr ior precedent if it can be reasonably harmonized with the intervening [higher] authority.” Lair v. Bullock, 697 F.3d 1200, 1206 (9th Cir. 2012) (citatio n modified). At bottom, Hunt controls here unless the governme nt can show that Hunt ’s reas oni ng is “cl early irr econcil abl e” with Collazo. The government does not meet this “ high standard. ” Id. at 1207 (citation modifie d). succe ssful Apprendi or Alleyne claim “is not e ntitled to a n ew tria l, but rather i s only ent itled t o resent encing ”).

USA V. C ASTRO A LAVEZ 15 A. Collazo relied on “well - establ ished principle s of consp iracy law,” which require no heigh tened mens rea beyond w hat th e und erlyin g crim e requi res. In Collazo, a jury convicted the def endants of conspiracy to distribute 500 grams of a mixture containing methamphetamine in violation of 21 U.S.C. § 846, and the district court sentenced defendants under § 841(b)(1)(A)(viii). 984 F.3d at 1317 –18. T he distr ict court instruct ed the jury to determine “whether the government proved beyond a reasonable doubt that the amount of metham phetami ne that was re asonabl y fores eeab le to [t he defendants] or fell within the scope of [their] particular agreem ent equ aled or exceed ed .. . 500 gr ams of a mixture containing methamphetamine.” Id. at 1317. We held th at th is jury instruction was incorrect b ecause the con spiracy crime did not require th e defend ants’ knowledge of drug type a nd quantity. Id. at 1333. Relying on “w ell - established principles of conspiracy law,” we explain ed that a conspiracy conviction requires the government to prove “(1) the defendant agreed with another person that some member of the conspiracy would commi t the relevant underlying offense,” and “(2) the defendant had the r equisite intent necessary for a conviction of the underlying offense.” Id. at 1318, 1320 (emphasis added). Turning to the underlying offense, we observed that § 841(a) makes it unlawful for any person to know ingly or intentiona lly distribute “‘a controlled substanc e,’ which is an unspecified substance listed on the federal drug schedules.” Id. at 1325 (citation modif ied). Although “the facts of drug type and quantity under § 841(b) constitute elements or ingredients of t he crime

16 USA V. C ASTRO A LAVEZ because they affect the penalty that can be imposed on a defendant, ” id. at 1322, we con cluded t hat t here was “no natural or ordinary way to re ad the intent requirement in § 841(a)(1) as modifying the d r ug types and quantities in § 841(b), ” id. at 13 26. Thus, “[b]ecause the government need not prove that a defendant knew (or had an intent) with respect to a specific drug type and quantity i n order to secure a conviction under § 841(a) .. ., the governme nt likewise need not prove such knowledge or intent f or” a consp iracy conviction under § 846. Id. at 1320 n.10, 1329. We rea ched thi s concl usio n becaus e — unlike attempt — conspiracy requires no great er men s rea t han the u nderlying offense. S ee id. at 1329 –33. Relying on United States v. Feola, 420 U.S. 671 (19 75), we explain ed that “ where an element of the underlying substantive offe nse does not include an intent requirement, the same will be true for a conspiracy to commit that offense, unle ss one of the policies behind the imposition of conspiratorial liability is not served by havi ng the s ame inten t.” Id. at 133 0 (citation modif ied). For § 846, “the offense of conspiracy to distribute a controlled substance is as ‘opprobrious’ and dangerous to society as the act of the individual drug de aler who actually distributes the controlled substance,” and so imposing an additional burden on the government to prove the conspirator’s knowledge of drug type and quantity would serve “no apparent purpose.” Id. at 1332 – 33 (quoting F eola, 420 U.S. at 693, 694). Indeed, our court has repeatedly upheld convictions for conspiracy based only on the mens rea required for the underlying crime. In Unit ed States v. Karr, 742 F.2d 493 (9th Cir. 1984), we held that the defendant could be found guilty of conspiring to receive stolen explosives even though he did not know t he materi als were st olen, because the underlying

USA V. C ASTRO A LAVEZ 17 offense required only that an individual have “reasonable cause t o beli eve” th e m aterials were stolen. Id. at 497 (citation modified). So too in United States v. Th omas, 887 F.2d 1341 (9th Cir. 1989), where we upheld a conviction for conspiracy to transport, receive, and acquire elk in interstate commerce in violation of state law based only on proof that the defendant “should h ave known” the conduct violated state l aw. Id. at 1346 – 47. And in United States v. Baker, 63 F.3d 1478 (9th Cir. 1995), we held th at “the defendants c[ould] be guilty of conspiring to violate RI CO even if they were not awa re thei r acti ons were il legal. ” Id. at 1493. T his wa s bec au se “e stablishing a defendant’s guilt of conspiracy to commit a sub st antive crime requir es proof of the mens rea essential for conviction of the substantive offense i tself. No greater or different intent is necessary.” Id. (emphas is added) (citation omitte d). B. Collazo ’s reasoning cannot be grafted onto attempted possession. Hunt ’s reasoning is not clearly irre concil abl e with Collazo. Collazo rests on the principle that conspiracy requires no greater level of intent than the under lying crime. But that principle does not apply to attempt. While conspiracy demands “proof of the mens r ea ess ential for conviction of the substantive offense itself,” Ba ker, 63 F.3d at 1493, attempt requires specif ic intent even when the underlying crime does no t, see Graci das -Ulibarry, 231 F.3d at 1193. This distinc tion m akes sens e. We require specif ic intent for attempt to ensure that a defend ant’ s “purpose was indeed to engage in criminal, rather than innocent, conduct.” Id. at 119 2–93. But the same rational e does not apply to conspiracy, bec ause “[t] he agreem ent it self is the offens e.” Collazo, 984 F.3d at 1319. Thus, because the me ns rea for attempt di ffers from the mens rea for conspiracy, the

18 USA V. C ASTRO A LAVEZ government fails to show that Hunt is irrecon cil able with Collazo ’s con spiracy -spe cific reasoning. T he government also argues that it is illogica l to apply Collazo to cons piracy to possess but not attempted possession, becaus e bo th cri mes are incho ate of fenses covered by the same statute. To be sure, applying Hunt and Collazo yields different outcomes for C astro Al avez’s conspiracy conviction and his attempted possession conviction. But there is nothing illogic al about this result. At most, the government highlights that there might be some tensi on between the two cas es. Even so, mere tension is not a valid b asis t o disreg ard preceden t. L air, 697 F.3d at 1207 (“It is not enough for there to be some tension betwe en the intervening higher authority and prior circuit precede nt, or for the intervening higher authority to cast doubt on the prior circuit preceden t.” (citation modified)). In sum, Collazo does not apply here, and we are bound by Hunt. III. T he di strict cour t improp erly all owed Detec tive Kelly Mon iz to testi fy about the significance of Jesus Malverde a nd S anta Mu erte, but the erro r was harmless. At trial, the government called Detective K elly Mo niz as an expert witness on d rug trafficking methods and valuation. Detectiv e Moniz t estified that the drawings sei zed from Castro Alavez’s b ag depi cted Jes us Malv erde and San ta Muerte, and that t hese a re Mexican patron saints that drug traffick ers pray to for protection, wea lth, abundance, and

USA V. C ASTRO A LAVEZ 19 silen ce. Castro Alav ez ar gues the dist rict court plainl y erred by admitting this te stimony. 3 Under pl ain er ror r eview, Castro Alavez m ust show: (1) an error; (2) that is plain; and (3) that aff ected his substantial rights. See United States v. Olano, 507 U.S. 725, 732– 36 (1993). “If these conditions are met, we may exercise our discretion to notice the forfeited error only if the error seriously affects the fairness, integrity, or publi c reputation of judicial procee dings.” United States v. Mendoza- Paz, 286 F.3d 1104, 1113 (9th Cir. 200 2) (cita tion modified). T he distric t court’s ad mission of Dete ctive Moniz’ s testimony plainly contravene d Federal Rule of Evidence 702, but Castro Alavez fails to show th at the erro r affect ed his substantia l rights. A. The dist rict c ourt aba ndoned its ga tekee ping rol e. Rule 702 allows a “witness who is qualified as an expert by knowledge, skill, experience, training, or education” to give opinion testi mony if t he expert ’s “s peciali zed knowledge will help the trie r of fact to understand the evidence or to d eterm ine a fact in is sue.” F ed. R. Evid. 702(a). “[B] efore admitting expert testimony, the district court must perform a gate keeping role to ensure that the testimony is both relevant and reliable.” United States v. Valenci a -Lopez, 971 F.3d 891, 89 7–9 8 (9th Cir. 2020) (citation modified). The reliability of an expert’s testimony “is the lynchpin.” Id. at 898. The reliability requirement ensures “th at an 3 Castro Alavez concedes that he forfeited his objection to Detective Moniz’s testim ony, and th us plai n error review applies. See Tan Lam, 976 F.3d a t 1006.

20 USA V. C ASTRO A LAVEZ expert, whether basing testimony upon professional studies or personal exper ience, employs in the courtroom the same level of intell ectual ri gor that charact erizes t he pra ctice of an expert i n the relev ant fiel d.” Kumho Ti re Co. v. Carmichael, 526 U.S. 137, 152 (1 999). When law enfo rc ement office rs are offe red as experts, “reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind [the testimony].” Me ndoza- Paz, 286 F.3d at 1112 (citation modifie d). Because the relia bility analysis “is a malleab le one ti ed to the f act s o f each c ase,” dist rict 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 c ourt neglected i ts gat ekeepi ng role when it allowed Detect ive Mo niz to testify about religious iconography purportedly associated with drug traffick ing. Detectiv e Moni z ha s twenty years o f experi ence as a law enforcem ent of ficer and has inves tigated more than 300 narcoti cs - relat ed c ases. He no doubt has suffi cient knowledge and experience to qualify as an expert in drug valuation and drug trafficking methods. But that exper tise, alone, does not qualify him to testify about ev ery matter remotel y related to drug trafficking. See Valen cia -Lopez, 971 F.3d at 900 (“[The expert’ s] qualificati ons and experien ce are r elevant, and indeed ne cessa ry. B ut th ey cannot e stablish the re liability and thus the a dmissibility of the expert testimony at issue.”). The government points t o slim evid ence that Detec tive Moniz knows anything about religious ico nography

USA V. C ASTRO A LAVEZ 21 associated with drug trafficking. His experi ence is limited to one four- hour class in 2 010 and another in 2022. He never investigate d or resear ched the subj ect; nor had h e serv ed as an expert on the subject before this cas e. A cross hundreds of investigations, Detectiv e Mon iz has only encountered Jesus Malverde iconography one other time. Th e government offers no other basis to support the reliability of Detecti ve Moniz’s te stimony. These qualifications f all short of Rule 702’s demanding sta ndard. Cf. Mendoza -P az, 286 F.3d at 1112 – 13 (finding that the expert was qualified to testify about the value of the seized d rugs b ecause t he expert “h ad inv estigat ed il legal narcotics trafficking for eleven ye ars ” and h ad “ob tained exper ience in the value of illegal nar cotics from intelligenc e databases ” and investig ations he conducted). Detect ive Moniz ’s minimal exposure to drug- relat ed religious iconography rendered his opinion unreli able. S ee Valen cia - Lopez, 971 F.3d at 900. We thus hold that the district court erred by allowing him to testify on the subject. B. Detecti ve Moni z’s testimony did not affect C astro Alavez’s substantial rights. For an error to af fect a defendant’s substantial rights, “the error must ha v e been prej udicial,” which means “[i]t must have aff ected the out come o f the d ist rict cou rt proceedings. ” Olano, 507 U.S. at 734. Castro Alavez fail s to demons trate a reasonable probability that absent Detect ive Moniz’s t estimony, the jury would have r eturned a verdict of not guilty on the conspiracy charge. See id. (explaining that the defendant has the burden to show preju dice); United States v. Rangel - Guzman, 752 F.3d 1222, 1224 (9th Cir. 2014).

22 USA V. C ASTRO A LAVEZ The evidence in criminating Castro A lavez was extensive. Besi des the ci rcumst antial ev iden ce implicating him in drug trafficking, Castro Alave z admitted that he was involved in drug trafficking and that he k new the packag e that arri ved at Ma chado’ s resi dence lik ely cont ain ed drugs. Because C astro Al avez f ail s to sh ow a reasonab le pr obabil ity that Dete ctive Moniz’ s testimony affec ted the jury’s ve rdict, w e affirm his convictions. 4 CONCLUSIO N W e vacate C astro Alav ez’s sent ence for attempted possession with the intent to distribute a controlled substance but affir m his convictio n s fo r attempted possession and conspiracy to possess a controlled substance. We r emand for further proceedings consistent with this opinion. AFFIRMED in p art, VACATED in part, a nd REMANDED. 4 Castro Alavez also argues that the district court abused its discretion by admitting the drawings th at depict ed Jesus Malverde and Santa Muerte. We need not reach this is sue becau se we are persuaded that any error is harmless for the same reason s that Detective M oniz’s testim ony did not affect Castro Alavez’s sub stantial rig hts. S ee Olano, 507 U. S. at 734 (explain ing that the plain er ror st andard “no rmally re quires the same kind of in quiry” as t he “harmle ss error” s tandard except t hat the bur den of persuas ion is o n the defe ndant ins tead of the governme nt).