Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.united States of America, Appellee, v. Margarita Cardona-rendon, Appellant, 9 F.3d 115 (8th Cir. 1993)

Margarita Cardona-Rendon appeals her sentence of sixty months imposed by the district court¹  after she pleaded guilty to distributing heroin, in violation of 21 U.S.C. § 841(a) (1). She contends that the district court erred in concluding that the government need only prove the quantity of heroin by a preponderance of the evidence. She argues that the government should have been required to prove the quantity of heroin beyond a reasonable doubt because the quantity of the controlled substance was an essential element of the substantive offense.

We have consistently held that " [t]he government bears the burden of proving by a preponderance of the evidence the quantity of drugs involved," United States v. Smiley, 997 F.2d 475, 481 (8th Cir. 1993), and that under section 841, " [q]uantity matters only for purposes of sentencing," and "even if alleged in the indictment, quantity is not an element of [the] offense." United States v. Mabry, No. 92-2943, slip op. at 10 (8th Cir. Aug. 13, 1993). We conclude, therefore, that Cardona-Rendon's argument is meritless.

Accordingly, we affirm.