USA v. Florencio Espinoza-Fajardo, No. 09-40399 (5th Cir. 2010)

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Case: 09-40399 Document: 00511085669 Page: 1 Date Filed: 04/20/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-40399 Conference Calendar April 20, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. FLORENCIO ESPINOZA-FAJARDO, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:08-CR-779-1 Before SMITH, PRADO, and HAYNES, Circuit Judges. PER CURIAM:* Florencio Espinoza-Fajardo appeals his guilty-plea convictions for possession with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1). He argues that, in light of the recent Supreme Court decision in Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), the factual basis for his guilty plea was insufficient to support his convictions because it did not establish that he knew the specific type and quantity of controlled substances he possessed. We review this issue, raised for the first * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 09-40399 Document: 00511085669 Page: 2 No. 09-40399 Date Filed: 04/20/2010 time on appeal, for plain error. United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001). The issue raised by Espinoza-Fajardo is foreclosed by current 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 21 U.S.C. § 841), which has not been overruled by Flores-Figueroa. See United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009), cert. denied, 2010 WL 562914 (Mar. 22, 2010) (No. 09-9048). judgment of the district court is AFFIRMED. 2 Accordingly, the

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