Opinion
No. 09-40958 Conference Calendar.
June 22, 2010.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 2:09-CR-221-1.
Before JOLLY, STEWART, and OWEN, Circuit Judges.
Jose Luis Cruz-Velez appeals his jury conviction for possession with intent to distribute 154.24 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). He argues that, in light of the Supreme Court decision in Flores-Figueroa v. United States, ___ U.S. ___, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009), the evidence was insufficient to support his conviction because the Government failed to prove beyond a reasonable doubt that he knew the specific type and quantity of controlled substance he possessed.
This issue is foreclosed by circuit precedent. See United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003) (holding that knowledge of drug type or quantity is not an element of an offense under § 841). Moreover, this precedent has not been overruled by Flores-Figueroa. See United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 1920, 176 L.Ed.2d 390 (2010). Accordingly, the judgment of the district court is AFFIRMED.