U.S. v. Hernandez

Full title: UNITED STATES of America, Plaintiff-Appellee v. Ronald HERNANDEZ…

Court: United States Court of Appeals, Fifth Circuit

Date published: Apr 19, 2011

422 F. App'x 386 (5th Cir. 2011)

Opinion

No. 09-11221 Conference Calendar.

April 19, 2011.

Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Dallas, TX, Shawn Lee Smith, Assistant U.S. Attorney, U.S. Attorney's Office, Fort Worth, TX, for Plaintiff-Appellee.

Jason Douglas Hawkins, Federal Public Defender, Federal Public Defender's Office, Dallas, TX, William Ernest Hermes-meyer, Assistant Federal Public Defender, Federal Public Defender's Office, Fort Worth, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:09-CR-72-1.

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Appealing the judgment in a criminal case, Ronald Hernandez raises arguments that are foreclosed by 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), which reaffirmed the holding in United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003), that knowledge of drug type and quantity is not an element of the offense under 21 U.S.C. § 841. He also raises arguments that he concedes are foreclosed by United States v. Brotan, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), which held that a district court may order a term of imprisonment to run consecutively with an unimposed state sentence. Finally, Hernandez raises arguments that he acknowledges are foreclosed by United States v. London, 568 F.3d 553, 564 (5th Cir. 2009), cert. denied, ___ U.S. ___, 131 S.Ct. 631, 178 L.Ed.2d 507 (2010). The Supreme Court adopted the position advanced in London. See Abbott v. United States, ___ U.S. ___, ___, 131 S.Ct. 18, 23, 178 L.Ed.2d 348 (2010) (holding that a defendant is subject to a mandatory, consecutive sentence for a conviction pursuant to 18 U.S.C. § 924(c) even if the defendant received a higher mandatory minimum on a different count of conviction).

The Government's motion for summary affirmance is GRANTED, its alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED.