USA v. Jose Cruz-Velez

Filing 920100624

Case: 09-40958

Document: 00511149388

Page: 1

Date Filed: 06/22/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-40958 Conference Calendar June 22, 2010 Lyle W. Cayce Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE LUIS CRUZ-VELEZ, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:09-CR-221-1

Before JOLLY, STEWART, and OWEN, Circuit Judges. PER CURIAM:* Jose Luis Cruz-Velez appeals his jury conviction for possession with intent to distribute 154.24 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). He argues that, in light of the Supreme Court decision in

Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), the evidence was insufficient to support his conviction because the Government failed to prove beyond a reasonable doubt that he knew the specific type and quantity of controlled substance he possessed.
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.
*

Case: 09-40958

Document: 00511149388 Page: 2 No. 09-40958

Date Filed: 06/22/2010

This issue is foreclosed by circuit precedent.

See United States v.

Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003) (holding that knowledge of drug type or quantity is not an element of an offense under § 841). Moreover, this precedent has not been overruled by Flores-Figueroa. See United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009), cert. denied, 130 S. Ct. 1920 (2010). Accordingly, the judgment of the district court is AFFIRMED.

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