                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          DEC 8 1998
                               TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk
 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                         No. 97-2393
 v.                                                 (D.C. CR-97-13-JC)
                                                  (District of New Mexico)
 MARIO CARBAJAL, JR.,

             Defendant-Appellant.


                          ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Mr. Carbajal was convicted of two counts of possession of a controlled

substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The



      *
             This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
first count charged that on December 11, 1996, Mr. Carbajal knowingly and

intentionally possessed with intent to distribute methamphetamine. The second

count charged that on the same date he knowingly and intentionally possessed

with intent to distribute cocaine.

      Mr. Carbajal appeals his conviction, seeking en banc reconsideration of our

holding in U.S. v. Richardson, 86 F.3d 1537, 1552-53 (10th Cir.) cert. denied, 117

S.Ct. 588 (1996), that simultaneous possession of different controlled substances

may constitute separate offenses under section 841(a)(1). He argues that

Richardson should be overruled and that his case should be remanded with

instructions to vacate the conviction and sentence on one of the two counts. He

concedes, however, that if Richardson is not reconsidered, it controls the

resolution of his appeal. We exercise jurisdiction over this appeal under 28

U.S.C. § 1291.

      "We cannot overrule the judgment of another panel of this court . . . absent

en banc reconsideration or a superseding contrary decision by the Supreme

Court." In re Smith, 10 F.3d 723, 724 (10th Cir.1993) (per curium). The request

for en banc reconsideration has been denied. The district court’s convictions are

therefore AFFIRMED.

                                             Entered for the Court,

                                             Robert H. Henry
                                             Circuit Judge

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