United States of America v. Orlando Vega, Appellant, 951 F.2d 1324 (D.C. Cir. 1992)

JUDGMENT

PER CURIAM

This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and oral arguments of counsel. After full review of the parties' submissions, the court is satisfied that appropriate disposition of the case does not warrant an opinion. See D.C. Cir. Rule 14(c).

Defendant raises a sole issue on appeal: Did the district court err in denying defendant's motion, made at the close of the government's case, for a judgment of acquittal? We find it plain that the evidence, which we must view in the light most favorable to the government, adequately supports defendant's conviction for possession with intent to distribute narcotics in violation of 21 U.S.C. § 841(a). The evidence was also adequate to prove defendant's possession of the quantity specified in 21 U.S.C. § 841(b) (1) (B) (iii) (5 grams or more of a mixture or substance which contains cocaine base).

We note defendant's treatment of the amount possessed as an element of the offense charged. Sister circuits confronted with the question have ruled that the quantity of narcotics involved is relevant only to enhancement of the sentence, not to the defendant's guilt or innocence. See, e.g., United States v. Campuzano, 905 F.2d 677, 679 (2d Cir.), cert. denied, 111 S. Ct. 363 (1990). We do not render a precedential decision on the point in this case, however, because defendant, having tendered neither a transcript of the charge to the jury nor a transcript of the sentencing hearing, has afforded us no basis to assail the trial court's handling of the matter. Accordingly, we hold only that the evidence on quantity sufficed to meet the 21 U.S.C. § 841(b) (1) (B) (iii) specification.

For the reasons stated, it is ORDERED and ADJUDGED that the judgment from which this appeal has been taken be affirmed.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15(b) (2).