United States v. Diaz-Andrade

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-51302 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS DIAZ-ANDRADE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. DR-00-CR-190-1 -------------------- September 19, 2001 Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Jesus Diaz-Andrade appeals his conviction for conspiracy to

possess with intent to distribute and possession with intent to

distribute more than 100 kilograms of marijuana in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 21 U.S.C. § 846. Diaz-

Andrade argues that the district court plainly erred by failing

to instruct the jury that the Government must prove beyond a

reasonable doubt that Diaz-Andrade knew the substance he

possessed was more than 100 kilograms of marijuana. However,

Diaz-Andrade stipulated that the contents of the backpacks

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-51302 -2-

recovered near where Diaz-Andrade was arrested contained

approximately 257 pounds of marijuana, and the indictment alleged

that he was guilty of drug trafficking crimes involving more than

100 kilograms of marijuana. Because the two counts of the

indictment alleged (and Diaz-Andrade stipulated to) drug amounts

that correspond to sentences based on § 841(b)(1)(B), there is no

violation of the Supreme Court’s holding in Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000), that “[o]ther than the fact of

a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” See United

States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000), cert.

denied, 121 S. Ct. 1152 (2001).

Moreover, review of the jury charge in this case reveals no

error, plain or otherwise. The jury was instructed adequately

with regard to the knowledge element of the crimes charged.

See United States v. Green, 246 F.3d 433, 437 (5th Cir. 2001).

The judgment of the district court is AFFIRMED.