     Case: 09-11221 Document: 00511450550 Page: 1 Date Filed: 04/19/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 19, 2011
                                     No. 09-11221
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RONALD HERNANDEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-72-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appealing the judgment in a criminal case, Ronald Hernandez raises
arguments that are foreclosed by United States v. Betancourt, 586 F.3d 303,
308-09 (5th Cir. 2009), cert. denied, 130 S. Ct. 1920 (2010), which reaffirmed the
holding in United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003),
that knowledge of drug type and quantity is not an element of the offense under
21 U.S.C. § 841. He also raises arguments that he concedes are foreclosed by
United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 09-11221 Document: 00511450550 Page: 2 Date Filed: 04/19/2011

                                 No. 09-11221

other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006),
which held that a district court may order a term of imprisonment to run
consecutively with an unimposed state sentence. Finally, Hernandez raises
arguments that he acknowledges are foreclosed by United States v. London, 568
F.3d 553, 564 (5th Cir. 2009), cert. denied, 131 S. Ct. 631 (2010). The Supreme
Court adopted the position advanced in London. See Abbott v. United States, 131
S. Ct. 18, 23 (2010) (holding that a defendant is subject to a mandatory,
consecutive sentence for a conviction pursuant to 18 U.S.C. § 924(c) even if the
defendant received a higher mandatory minimum on a different count of
conviction).
      The Government’s motion for summary affirmance is GRANTED, its
alternative motion for an extension of time to file a brief is DENIED, and the
judgment of the district court is AFFIRMED.




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