United States v. Diaz-Andrade ( 2001 )

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
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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that this opinion should not be published and is not precedent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.