USA v. Lopez-Chavez, No. 22-40547 (5th Cir. 2023)
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Case: 22-40547 Document: 00516656132 Page: 1 Date Filed: 02/24/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit FILED No. 22-40547 Summary Calendar ____________ February 24, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Edwin Noe Lopez-Chavez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 2:21-CR-813-1 ______________________________ Before Jones, Haynes, and Oldham, Circuit Judges. Per Curiam: * Following a jury trial, Edwin Noe Lopez-Chavez was convicted of one count of possessing with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Lopez-Chavez appeals his conviction. For the reasons below, we AFFIRM. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-40547 Document: 00516656132 Page: 2 Date Filed: 02/24/2023 No. 22-40547 On appeal, Lopez-Chavez maintains that his conviction should be reversed because the district court’s instructions to the jury constructively amended his indictment, thereby violating his Fifth Amendment rights. He contends that because the indictment alleges that he “knowingly and intentionally” committed the offense, yet the district court’s instructions to the jury only provided the word “knowingly,” a constructive amendment occurred. Because Lopez-Chavez raises his claim for the first time on appeal, plain error review applies. See United States v. Stanford, 805 F.3d 557, 566 (5th Cir. 2015). Although the offense was charged in the conjunctive, the statute itself is disjunctive. See 21 U.S.C. § 841(a)(1). “It is well-established in this Circuit that a disjunctive statute may be pleaded conjunctively and proved disjunctively.” United States v. Haymes, 610 F.2d 309, 310 (5th Cir. 1980); see also United States v. Bennett, 874 F.3d 236, 257 (5th Cir. 2017); United States v. Holley, 831 F.3d 322, 328 & n.14 (5th Cir. 2016). Thus, a determination that Lopez-Chavez committed the offense knowingly does not violate the Fifth Amendment and does not constitute a constructive amendment of the indictment. See Bennett, 874 F.3d at 257. Accordingly, Lopez-Chavez has not shown that the district court committed a clear or obvious error for purposes of plain error review. See Stanford, 805 F.3d at 566. AFFIRMED. 2
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