United States of America v. Natalie Henlon

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2773
UNITED STATES OF AMERICA
v.
NATALIE HENLON,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 07-cr-00120-003)
District Judge: Honorable Anne E. Thompson
Submitted Under Third Circuit LAR 34.1(a)
November 17, 2009
Before: RENDELL, BARRY and CHAGARES, Circuit Judges.
(Filed November 18, 2009)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Natalie Henlon was convicted by a jury of (1) conspiracy to distribute and possess
with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §846 and
(2) possessing with intent to distribute 100 grams of a mixture containing heroin, in

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violation of 21 U.S.C. §841(a)(1) and (b)(1)(B) and 18 U.S.C. §2. The District Court
sentenced Henlon to 46 months, notwithstanding the guideline range of 51 to 63 months.
On appeal, Henlon argues that the District Court erred in its jury instructions, refusal to
give the jury a special interrogatory, and guideline calculation because Henlon believed
the controlled substance at issue in the offense was marijuana, when it was actually
heroin.
On February 23, 2006, Postal Inspector John Roethel discovered that a package
addressed to “F. Turner” at 25 New Rose Street, Trenton, N.J., (“25 New Rose”)
contained heroin. 25 New Rose was Henlon’s home address. Roethel set up a controlled
delivery of the package and a prosecutor obtained an anticipatory search warrant for 25
New Rose. On February 24, 2006, a detective set up surveillance of 25 New Rose while
Roethel, dressed in an undercover capacity as a letter carrier, delivered the package to that
address. Around 11:00 a.m., Henlon’s co-defendants Debrie Coates and James Tucker
parked in front of 25 New Rose for about eleven minutes. At one point, Coates knocked
on the front door, but no one answered. Coates and Tucker left, but drove by the
residence again at 11:48 a.m. and 11:55 a.m. Around noon, Roethel arrived and knocked
on the door. Co-defendant Anique Johnson answered, initially refused the package, and
then accepted it. As soon as Roethel’s postal truck began to drive away, Coates and
Tucker pulled up next to Roethel and asked him if he had a package for 25 New Rose.
Roethel told them that he had just delivered a package to that address. Henlon arrived at

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Henlon concedes that there was no question about either the identity or the weight of1
the drugs involved in this case. Appellant’s Br. 19.
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25 New Rose around 12:10 p.m., just before authorities executed the search warrant.
Coates and Tucker returned to Henlon’s residence after the execution of the warrant and
were detained. Officers searched Henlon’s home and found the package of heroin,
marijuana, and a digital scale. The package contained 606.4 grams of heroin. Coates and
Tucker both entered into plea agreements with the government and stated that they
believed that the package contained marijuana. Henlon gave two statements to police;
after numerous denials, she stated that she thought the package contained “weed.”
Henlon argues that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the
District Court was required to instruct the jury that it could convict Henlon of the offense
charged only by finding that she knew the substance she trafficked was heroin as opposed
to marijuana. We apply an abuse of discretion standard to determine if the District Court1
erred in refusing to give a requested jury instruction and exercise plenary review to
determine if the jury instructions stated the proper legal standard. United States v.
Jimenez, 513 F.3d 62, 74 (3d Cir. 2008).
In United States v. Barbosa, the defendant (“Barbosa”) believed that he was
distributing heroin when he was actually distributing cocaine base. 271 F.3d 438 (3d Cir.
2001). In that case, we specifically considered whether or not “Barbosa’s lack of intent to
traffic in cocaine base, brought about because of his mistake of fact concerning drug

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identity, would be yet another fact that the jury was bound to find under the teachings of
Apprendi.” Id. at 457. We noted that the drug trafficking statutes require specific
knowledge or intent only as to a general category of unlawful substances and that
Apprendi did not change the Government’s mens rea burden. Id. at 458. We stated,
“[t]hus, we leave undisturbed our jurisprudence with respect to the mens rea requirement,
which only requires the Government to prove the defendant’s knowledge that he was
trafficking in a controlled substance.” Id. at 459. Thus, we have clearly held that, post-
Apprendi, a defendant may be punished for the drug he actually possessed even if he
intended to possess another. Id.
Henlon submits that Barbosa should be re-evaluated because the Third Circuit
expressed pre-Apprendi logic in Barbosa (a post-Apprendi case). Henlon bases this
assertion, in large part, on the following quote from Barbosa:
Accordingly, we now formally adopt the uniform and persuasive
reasoning of pre-Apprendi federal appellate authority, which
held essentially that a defendant who is in actual possession of
a particular controlled substance, while intending to distribute
another, may be punished for the drug with which he is found to
be in possession.
271 F.3d at 459.
In Barbosa we adopted the pre-Apprendi authority because we found, after
extensive analysis, that Apprendi did not change the law regarding this particular issue.
Therefore, the District Court did not err by refusing to charge the jury that it had to
determine what particular type of controlled substance Henlon intended to possess.

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Henlon also asks this Court to vacate her sentence and remand her case for
resentencing because the District Court failed to give the jury a special verdict sheet to
determine the particular controlled substance that Henlon believed was in the package, to
enable the court to apply the proper sentencing guideline. As explained above, Henlon
may be convicted of and punished for possessing and intending to distribute heroin, even
if she believed that the controlled substance at issue was marijuana. Therefore, the
District Court did not err by refusing to submit a special interrogatory to the jury
regarding the particular controlled substance Henlon believed was in the package.
We review the District Court’s sentence for reasonableness under a deferential
abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). A sentencing
court is required to 1) calculate the guidelines sentence; 2) rule on any departure motions;
and 3) consider any relevant 18 U.S.C. §3553(a) factors. United States v. Ali, 508 F.3d
136, 142 (3d Cir. 2007). Henlon contends that it was unreasonable for the District Court
to apply the heroin sentencing guideline rather than the marijuana guideline. Henlon
states that the District Court acted unreasonably in failing to consider whether or not the
marijuana guideline was more applicable under 18 U.S.C. §3553. The Government
correctly points out that although Henlon continually uses the term “reasonable,” her
objection is actually to the first step of the District Court’s sentencing process: electing to
apply the heroin guideline as opposed to the marijuana guideline. The Barbosa court
determined that Barbosa “should be sentenced based upon cocaine base - the drug he

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actually transported . . .” 271 F.3d at 461. As discussed above, the District Court did not
commit an error of law by punishing Henlon for possessing and intending to distribute
heroin though she believed the package contained marijuana. The District Court applied
the correct guideline, reduced the offense level due to Henlon’s minor role in the offense
and her safety valve eligibility, and granted Henlon a downward variance from the
resulting guideline range. Therefore, Henlon’s sentence was not unreasonable.
For the reasons set forth above, we will AFFIRM the judgment of the District
Court.

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