     Case: 09-40038     Document: 00511019485          Page: 1    Date Filed: 02/03/2010




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

                                                  FILED
                                                                          February 3, 2010

                                       No. 09-40038                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

DOMINGO ARROYO-ARIAS,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 2:08-CR-635-ALL


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Domingo Arroyo-Arias appeals his jury trial conviction for possession with
intent to distribute more than five kilograms of cocaine. Arroyo-Arias avers
that, in light of the Supreme Court’s decision in Flores-Figueroa v. United States,
129 S. Ct. 1886 (2009), the Government was required to prove beyond a
reasonable doubt that he knowingly possessed the particular drug type and
amount involved. Arroyo-Arias suggests that the decision in Flores-Figueroa
calls into question our precedent that would otherwise foreclose this claim. See,

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40038   Document: 00511019485     Page: 2   Date Filed: 02/03/2010

                                 No. 09-40038

e.g., United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003)
(holding that proof of knowledge of the drug type or quantity is not required to
sustain a conviction under 21 U.S.C. § 841(a)(1)). This court recently decided
United States v. Betancourt, 586 F.3d 303, 308)09 (5th Cir. 2009), which held
that Flores-Figueroa did not overturn Gamez-Gonzales.
      Because Arroyo-Arias’s success on his challenge to the sufficiency of the
evidence was dependent on his argument that Flores-Figueroa required that the
Government prove the type and quantity of controlled substance involved and
because he does not contend that the Government failed to prove his knowing
possession of a controlled substance, the evidence was sufficient to support his
conviction. See Gamez-Gonzalez, 319 F.3d at 700. Arroyo-Arias admitted to
border patrol agents that he knew that the vehicle that he was driving contained
a controlled substance, which was concealed in a hidden compartment under the
driver’s side floorboard. See United States v. Jones, 185 F.3d 459, 464 (5th Cir.
1999) (possession of a controlled substance may be shown by control over the
vehicle in which the drugs are concealed).      Furthermore, the Government
presented evidence that the cocaine weighed more than five kilograms. The
judgment of the district court is affirmed.
      AFFIRMED.




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