Summary
In Jarvis v. Armstrong, 94 Miss. 145, 48 So. 1, relied on by the appellant, the land had been purchased for eight hundred dollars by Armstrong, paying twenty-five dollars cash and the balance by notes, which notes were purchased by Jarvis, who, by operation of law, had the vendor's lien assigned to him.
Summary of this case from Welch v. ThigpenOpinion
No. 09-11105 Non-Argument Calendar.
August 11, 2009.
Stephen J. Langs, Donna Lee Elm, Federal Public Defender, Orlando, FL, for Defendant-Appellant.
Peggy Morris Ronca, Orlando, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 08-00196-CR-ORL-22-DAB.
Before BIRCH, HULL and PRYOR, Circuit Judges.
Jarvis Armstrong appeals his conviction for possessing with intent to distribute five grams or more of cocaine base. 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii). Armstrong argues that the government failed to prove he sold an illegal substance or that the substance was crack cocaine. We affirm.
We review de novo the denial of a judgment of acquittal, and we construe the evidence in the light most favorable to the government. United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). To sustain a conviction under section 841, the government must prove that "the defendant possessed a controlled substance knowingly and . . . with the intent to distribute it." United States v. Baker, 432 F.3d 1189, 1233 (11th Cir. 2005). "[B]ecause the specific amount and type of drugs are not elements of the offense, the government's failure to prove the amount or type charged in the indictment does not merit reversal." Id.; see United States v. Adams, 1 F.3d 1566, 1582-S3 (11th Cir. 1993).
The district court did not err by denying Armstrong's motion for a judgment of acquittal. An undercover agent, James McGriff, and a confidential informant testified consistently that McGriff negotiated to purchase and, by all appearances, purchased from Armstrong cocaine. The jury was entitled to credit their testimonies. Armstrong also argues that the government failed to prove he sold crack cocaine, but this alleged failure does not affect his conviction. "A violation of section 841(a)(1) occurs when the government proves beyond a reasonable doubt that a defendant possessed and intended to distribute a `controlled substance,' regardless of whether that substance is cocaine or cocaine base[,]" United States v. Williams, 876 F.2d 1521, 1525 (11th Cir. 1989), and Armstrong "concedes that the government proved that the controlled substance was, in fact, cocaine base."
Armstrong's conviction is AFFIRMED.