                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-11105                 ELEVENTH CIRCUIT
                                                              AUGUST 11, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                 D. C. Docket No. 08-00196-CR-ORL-22-DAB

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JARVIS DAMON ARMSTRONG,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (August 11, 2009)

Before BIRCH, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Jarvis Armstrong appeals his conviction for possessing with intent to
distribute five grams or more of cocaine base. 21 U.S.C. §§ 841(a)(1),

(b)(1)(B)(iii). Armstrong argues that the government failed to prove he sold an

illegal substance or that the substance was crack cocaine. We affirm.

      We review de novo the denial of a judgment of acquittal, and we construe

the evidence in the light most favorable to the government. United States v.

Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). To sustain a conviction under

section 841, the government must prove that “the defendant possessed a controlled

substance knowingly and . . . with the intent to distribute it.” United States v.

Baker, 432 F.3d 1189, 1233 (11th Cir. 2005). “[B]ecause the specific amount and

type of drugs are not elements of the offense, the government’s failure to prove the

amount or type charged in the indictment does not merit reversal.” Id.; see United

States v. Adams, 1 F.3d 1566, 1582–83 (11th Cir. 1993).

      The district court did not err by denying Armstrong’s motion for a judgment

of acquittal. An undercover agent, James McGriff, and a confidential informant

testified consistently that McGriff negotiated to purchase and, by all appearances,

purchased from Armstrong cocaine. The jury was entitled to credit their

testimonies. Armstrong also argues that the government failed to prove he sold

crack cocaine, but this alleged failure does not affect his conviction. “A violation

of section 841(a)(1) occurs when the government proves beyond a reasonable



                                           2
doubt that a defendant possessed and intended to distribute a ‘controlled

substance,’ regardless of whether that substance is cocaine or cocaine base[,]”

United States v. Williams, 876 F.2d 1521, 1525 (11th Cir. 1989), and Armstrong

“concedes that the government proved that the controlled substance was, in fact,

cocaine base.”

      Armstrong’s conviction is AFFIRMED.




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