United States v. Carbajal

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 8 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-2393
v. (D.C. CR-97-13-JC)
(District of New Mexico)
MARIO CARBAJAL, JR.,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Mr. Carbajal was convicted of two counts of possession of a controlled
substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
first count charged that on December 11, 1996, Mr. Carbajal knowingly and
intentionally possessed with intent to distribute methamphetamine. The second
count charged that on the same date he knowingly and intentionally possessed
with intent to distribute cocaine.
Mr. Carbajal appeals his conviction, seeking en banc reconsideration of our
holding in U.S. v. Richardson, 86 F.3d 1537, 1552-53 (10th Cir.) cert. denied, 117
S.Ct. 588 (1996), that simultaneous possession of different controlled substances
may constitute separate offenses under section 841(a)(1). He argues that
Richardson should be overruled and that his case should be remanded with
instructions to vacate the conviction and sentence on one of the two counts. He
concedes, however, that if Richardson is not reconsidered, it controls the
resolution of his appeal. We exercise jurisdiction over this appeal under 28
U.S.C. § 1291.
"We cannot overrule the judgment of another panel of this court . . . absent
en banc reconsideration or a superseding contrary decision by the Supreme
Court." In re Smith, 10 F.3d 723, 724 (10th Cir.1993) (per curium). The request
for en banc reconsideration has been denied. The district court’s convictions are
therefore AFFIRMED.
Entered for the Court,
Robert H. Henry
Circuit Judge
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