United States v. Pena

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 13, 2001
• Docket: 00-40831
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40831 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOEL PENA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-00-CR-57-1 -------------------- February 13, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Joel Pena appeals his guilty-plea conviction and sentence

for possession with the intent to distribute more than five

kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A). He asserts that his plea was involuntary because,

although he informed the district court that he intended to

possess marijuana rather than cocaine, the district court led him

to believe that his knowledge of the specific drug possessed was

irrelevant, which, he asserts, is error following Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348, 2362-63 (2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40831 -2-

Because Pena’s argument was not raised in the district

court, it is reviewed for plain error only. See United States v.

Meshack, 225 F.3d 556, 575 (5th Cir. 2000). Pena has not shown

any error, plain or otherwise, because he was sentenced to the

statutory minimum term of imprisonment, rendering Apprendi

inapplicable. See 21 U.S.C. § 841(b)(1)(A); United States v.

Doggett, 230 F.3d 160, 166 (5th Cir. 2000), petition for cert.

filed (U.S. Jan. 4, 2001) (No. 7819); Meshack, 225 F.3d at 575-

77; see also United States v. Keith, 230 F.3d 784, 787 (5th Cir.

2000). To the extent that Pena argues, without reference to

Apprendi, that his plea was involuntary because he did not admit

to knowingly possessing cocaine, the argument is without merit.

See United States v. Valencia-Gonzales, 172 F.3d 344, 345 (5th

Cir.), cert. denied, 528 U.S. 894 (1999); United States v.

Cartwright, 6 F.3d 294, 303 (5th Cir. 1993).

AFFIRMED.