United States of America, Plaintiff-appellee, v. Jerome Enrico Cuie, Jr., Defendant-appellant, 9 F.3d 1554 (9th Cir. 1993)

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US Court of Appeals for the Ninth Circuit - 9 F.3d 1554 (9th Cir. 1993)

Submitted Nov. 1, 1993. *Decided Nov. 5, 1993


Before: REINHARDT, BRUNETTI and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Jerome Enrico Cuie, Jr. challenges the district court's imposition of a five-year mandatory minimum sentence pursuant to 21 U.S.C. § 841(b) (1) (B) (iii) (" § 841(b) (1) (B) (iii)") and requests that his sentence be vacated and his case remanded for resentencing under 21 U.S.C. § 841(b) (1) (C) (" § 841(b) (1) (C)"). Cuie contends that because the amount of cocaine he pled guilty to possessing with intent to distribute (13.82 grams) was not included in the indictment, the district court's application of the five-year mandatory minimum sentence under § 841(b) (1) (B) (iii) was improper. Cuie maintains that absent specific mention of the amount of cocaine in the indictment, he should have been sentenced under § 841(b) (1) (C), which imposes no mandatory minimum sentence.

We affirm the district court. In United States v. Arias-Villanueva, 998 F.2d 1491 (9th Cir. 1993), we held explicitly that drug quantity need not be pleaded in an indictment to support the application of the five-year mandatory minimum sentence under § 841(b). In United States v. Sotelo-Rivera, 931 F.2d 1317, 1319 (9th Cir. 1991), moreover, we held that drug quantity is not an element of the substantive offense of possession of controlled substances with intent to distribute that is defined under 21 U.S.C. § 21(a) (1). Rather, drug quantity is relevant only to the penalty provisions on § 841(b) (1), and is a matter for the district court to determine at sentencing. It is clear that Arias-Villanueva and Sotelo-Rivera control this case. As a result, Cuie's sentence is AFFIRMED.

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The panel unanimously finds this case suitable for submission on the record and briefs without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3