                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 25, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-41391
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RICHARD WILLHITE,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 9:02-CR-46-1
                       --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Richard Willhite appeals the sentence imposed upon his

guilty-plea conviction for conspiracy to defraud the Food and

Drug Administration (FDA), in violation of 18 U.S.C. § 371, by

violating 21 U.S.C. §§ 331(a) and 333(a)(2).   He argues that he

lacked the requisite intent to defraud for his sentence to be

based on the felony provision in 21 U.S.C. § 333(a)(2) and that

the count of the indictment to which he pleaded guilty did not


     *
        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that this opinion should not be published and is not precedent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. 03-41391
                                -2-

contain a conspiring-to-defraud-the-United-States allegation and

therefore differed from the offense for which he was convicted

and sentenced.

     Under 18 U.S.C. § 371, a defendant may be charged with

either conspiring to commit an offense against the United States

or conspiring to defraud the United States or one of its

agencies.   The penalty provision of 18 U.S.C. § 371 does not

differentiate between the two types of conspiracies, but rather,

provides for a maximum term of imprisonment of five years if the

object of the conspiracy is the commission of a felony.    Count

one of the indictment, to which Willhite pleaded guilty, charged

him with conspiring to commit offenses against the United States

by intentionally violating provisions of the Food, Drug, and

Cosmetics Act (FDCA), thereby defrauding and misleading the FDA.

See e.g., United States v. Arlen, 947 F.2d 139, 143-44 (5th Cir.

1991).   It contains the intent-to-defraud language with regard to

both of the underlying offenses in 21 U.S.C. §§ 331(a) and

333(a)(2), thus making the underlying offenses, i.e., the object

of the conspiracy, punishable as felonies.   Willhite’s suggestion

that he never intended to defraud the FDA is disingenuous.     The

count of the indictment to which he pleaded guilty is replete

with allegations that he intended to defraud and mislead the FDA

and there is nothing in the record to suggest otherwise.

     Willhite’s citation to United States v. Haga, 821 F.2d 1036,

1043 (5th Cir. 1987) is unavailing.   Haga was convicted and
                            No. 03-41391
                                 -3-

sentenced for “‘the felony offense of conspiracy to defraud an

agency of the United States, the FDA’ under the ‘defraud’ clause

of section 371,” but he was indicted only under the conspiracy

“to commit any offense against the United States” clause of

18 U.S.C. § 371.    Id. at 1042, 1043, 1044-45.   That was not the

case for Willhite, who was indicted, convicted, and sentenced

under the “commit any offense against the United States” clause

of 18 U.S.C. § 371.

     Willhite’s argument that he relied on the advice of counsel

and was therefore unaware that he was violating the law is

disingenuous.    The record indicates that Willhite did not

disclose all relevant information to counsel and that Willhite

admitted at the sentencing hearing that he knew his actions were

illegal.

     The Government’s evidence was sufficient to make out a

violation of 21 U.S.C. § 333(a)(2) because it demonstrated that

Willhite intentionally violated § 331(a) with the specific intent

to defraud or mislead the FDA.    See Arlen, 947 F.2d at 143.

     AFFIRMED.
