conviction for attempted possession with intent to distribute a controlled substance. In Pennell, the defendant asserted that he could not be convicted of attempt to possess with intent to distribute cocaine because the substance he attempted to purchase from the undercover agents, in fact, was “sham” cocaine. As this Court explained, Pennell’s defense is essentially one of impossibility that Congress intended to eliminate in cases prosecuted under 21 U.S.C. §§ 841(a)(1) and 846. Id. at 525. The Court held that “the purchase of a noncontrolled substance that the defendant subjectively believes to be a controlled substance can constitute an attempt to possess with intent to distribute under § 846.” Id. The authority in this Circuit for this proposition is firm. Pennyman, 889 F.2d at 107 (<HOLDING>); Bilderbeck, 163 F.3d at 976 (“[A] a purchase
holding that defendant who was a passenger in a car had joint constructive possession of drugs found next to the defendants luggage in truck of car even where she disclaimed ownership of the drugs holding that uncharged amounts of drugs may be included as relevant conduct even if the defendant never actually possessed or distributed the drugs holding that the evidence was insufficient to prove the offense of supplying contraband to a jail because the defendant was not in possession of the drugs when he was taken to jail where the arresting officer entered the jail with the drugs holding evidence insufficient to establish defendant had physical or constructive possession of heroin when no drugs were found on his person and the only drugs discovered on the premises which he shared with the codefendant were secreted out of plain view holding that a defendant may be found to have taken a substantial step for the purpose of an attempt offense even though he or she has failed to gain possession of drugs or sham drugs