     Case: 12-40240     Document: 00512021460         Page: 1     Date Filed: 10/16/2012




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

                                                                            FILED
                                                                         October 16, 2012
                                     No. 12-40240
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CRISTOBAL LEAL-PENA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1378-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appealing the judgment in a criminal case, Cristobal Leal-Pena raises an
argument that is foreclosed by United States v. Betancourt, 586 F.3d 303, 308-09
(5th Cir. 2009), 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. Leal-Pena
acknowledges that the argument is foreclosed but moves for summary
disposition so that he can raise the issue in a petition for writ of certiorari. The

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40240   Document: 00512021460   Page: 2   Date Filed: 10/16/2012

                               No. 12-40240

motion for summary disposition is GRANTED, and the judgment of the district
court is AFFIRMED.




                                    2
