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

                                                 FILED
                                                                         December 10, 2009

                                       No. 09-40360                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee
v.

GERMON MONTREL WINSTON,

                                                   Defendant–Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:08:cr-00746-1


Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Germon Montrel Winston appeals his conviction for three counts: two
counts of possession with intent to distribute controlled substances under 21
U.S.C. § 841 and one count of conspiracy to possess with intent to distribute
controlled substances under 21 U.S.C. §§ 846 and 841. Winston argues that the
Government did not prove beyond a reasonable doubt that he knew the type and
quantity of the drugs he possessed. Because we have held that “knowledge of
the drug type and quantity is not an element that must be . . . proved” beyond

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-40360

a reasonable doubt, we affirm. United States v. Gamez-Gonzales, 319 F.3d 695,
700 (5th Cir. 2003); see also United States v. Betancourt, No. 08-40909, 2009 WL
3233532, at *4 (5th Cir. Oct. 9, 2009) (re-affirming Gamez-Gonzalez).
      Winston, while driving a tractor-trailer rig, pulled into the Sarita, Texas,
Border Patrol checkpoint. As Customs and Border Protection (“CBP”) Agent
Kavonte Wilson questioned Winston, CBP Agent Manuel Ozuna walked a
detection canine around the rig. The dog alerted Agent Ozuna to the tractor
portion of the vehicle. Agent Wilson directed Winston to drive the rig to a
secondary inspection area, where CBP agents conducted a second canine
inspection, escorted Winston to a waiting area, and conducted a search of the
vehicle.    CPB agents found 90.6 kilograms of marijuana, 3.1 kilograms of
cocaine, $38,000 in $20 bills, and a bottle of “Scent Away,” which “could be used
to try to mask the odor of marijuana.”
      The grand jury charged Winston with three counts: (1) conspiracy to
possess with the intent to distribute more than five hundred grams of cocaine
and more than fifty kilograms of marijuana in violation of 21 U.S.C. § 846 and
§ 841(a)(1) & (b)(1)(B), and 18 U.S.C. § 2; (2) possession with intent to distribute
more than five hundred grams of cocaine in violation of 21 U.S.C. § 841(a)(1) &
(b)(1)(B), and 18 U.S.C. § 2; and (3) possession with intent to distribute more
than fifty kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B),
and 18 U.S.C. § 2. The jury found Winston guilty on all counts, and Winston
appealed.
      On appeal, Winston argues that the Government did not prove beyond a
reasonable doubt that he knew the specific types and quantities of drugs he
possessed. Winston acknowledges that we have previously held that “even
though the drug type and quantity must now be proved beyond a reasonable
doubt, knowledge of the drug type and quantity is not an element that must be
so proved.”    Gamez-Gonzales, 319 F.3d at 700 (emphasis added).           Winston

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argues, however, that we should revisit the Gamez-Gonzales holding in light of
Flores-Figuera v. United States, in which the Supreme Court held that if the
Governm ent     charges     a   defendant      w ith   a   v iolation   of   18
U.S.C. § 1028A(a)(1)—the federal identity theft statute—the Government must
prove beyond a reasonable doubt that “the defendant knew that the means of
identification at issue belonged to another person.” 129 S. Ct. 1886, 1888–94
(2009).
      In Betancourt, we held that Flores-Figuera did not overturn Gamez-
Gonzales. See Betancourt, 2009 WL 3233532, at *4. Specifically, we held that
“the structure of § 841 is different from that of § 1028A(a)(1),” and that “[a]
common-sense, natural reading of § 841 leads to the inevitable conclusion that
Congress did not intend for the word ‘knowingly’ in § 841(a) to modify language
in § 841(b).” Id. at *5,*6. Because Gamez-Gonzales precludes Winston’s only
argument, and Betancourt affirmed Gamez-Gonzales’s holding, we affirm
Winston’s conviction.
      AFFIRMED.




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