     Case: 17-40729      Document: 00514407992         Page: 1    Date Filed: 03/29/2018




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

                                    No. 17-40729                                FILED
                                  Summary Calendar                        March 29, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANTONIO TORRES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-998-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Antonio Torres pled guilty to the count of his indictment that charged
him with possessing methamphetamine with the intent to distribute and
aiding and abetting.       He received a below-Guidelines prison term of 240
months and a five-year term of supervised release. Raising five issues, Torres
challenges his conviction and sentence.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-40729

      In his initial two assignments of error, Torres argues for the first time
that there was an inadequate factual basis supporting a conviction for the
substantive drug trafficking offense, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and the
aiding-and-abetting offense, 18 U.S.C. § 2. More particularly, he contends
that, in light of McFadden v. United States, 135 S. Ct. 2298 (2015), the
Government that (1) he knew he was dealing with a drug listed on the federal
drug schedules, even if he did not know the specific identity of the drug, or (2)
he knew the identity of the substance.
      Knowledge of the type and quantity of a controlled substance is not an
element of a Section 841(a)(1) offense. United States v. Gamez-Gonzalez, 319
F.3d 695, 699–700 (5th Cir. 2003). It is not clear or obvious that McFadden
extends beyond application of the Controlled Substance Analogue Enforcement
Act or that it changes our precedent in non-analogue cases. See McFadden,
135 S. Ct. at 2302. Given Torres’s admissions at rearraignment that he knew
he was transporting a controlled substance, he has not shown that the district
court plainly erred in determining that there was a sufficient factual basis to
satisfy the knowledge element of his Section 841(a) offense. See Puckett v.
United States, 556 U.S. 129, 135 (2009). Accordingly, we do not consider
Torres’s argument concerning the aiding-and-abetting offense.
      Next, Torres argues that the district court erred in denying a mitigating
role adjustment under U.S.S.G. § 3B1.2. The record includes factors favoring
granting the adjustment and some counseling against the adjustment. It was
within the district court’s discretion to decide how to weigh the factors. See
United States v. Torres-Hernandez, 843 F.3d 203, 210 (5th Cir. 2016). Because
the record, read as a whole, supports a plausible judgment in either direction,
the district court’s denial of a role adjustment was not clearly erroneous. See
id. at 207, 209–10.



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                                 No. 17-40729

      In his fourth assignment of error, Torres argues that the district court
plainly erred in assessing two criminal points based on a finding that he
committed his instant offense while there was an outstanding state court
warrant to revoke the probationary term imposed in a prior case. Because
Torres has withdrawn this claim, we do not review the issue.
      Finally, Torres argues that the district court assessed a special condition
of supervised release that was an impermissible delegation of judicial
authority.   Even if the district court’s oral pronouncement at sentencing
regarding Torres’s participation in a substance abuse treatment program
constitutes plain error affecting Torres’s substantial rights, we decline to
exercise our discretion to correct this unpreserved error. We base our decision
on the nature of the offense, Torres’s history of substance abuse, the district
court’s recommendation that Torres participate in the Residential Drug Abuse
Program in prison, and the court’s wording of the special condition in the
written judgment, which omits language that we have previously deemed
problematic. See United States v. Ellis, 564 F.3d 370, 378–79 (5th Cir. 2009).
      AFFIRMED.




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