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

                                                                   FILED
                                                                 October 24, 2007
                                 No. 07-50241
                              Conference Calendar             Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA
                                            Plaintiff-Appellee

v.

ROSARIO MUNIZ TELLEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 7:06-CR-158-ALL


Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
      Rosario Muniz Tellez appeals his conviction following a jury trial for being
an unlawful user of a controlled substance in possession of ammunition in
violation of 18 U.S.C. § 922(g)(3). He argues that the district court erred in
denying his request for an instruction and jury charge that included the
definition of “unlawful user” that this court used in United States v. Herrera, 289
F.3d 311, 323-24 (Herrera I), vacated, United States v. Herrera, 313 F.3d 882 (5th
Cir. 2002) (en banc) (Herrera II).      The Government moves for summary


      *
      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should not be published and is not precedent except under the limited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. 07-50241

affirmance on the ground that Muniz Tellez’s argument is foreclosed by our
precedent or, in the alternative, for an extension of time to file an appellate brief.
      We review a district court’s refusal to give a requested jury instruction for
abuse of discretion. United States v. Cain, 440 F.3d 672, 674 (5th Cir. 2006).
Muniz Tellez’s argument that the district court erred in refusing to give the jury
a Herrera I instruction is foreclosed by our precedent, particularly our decision
in United States v. Patterson, 431 F.3d 832, 837-39 (5th Cir. 2005), cert. denied,
126 S. Ct. 2043 (2006). See also United States v. McCowan, 469 F.3d 386, 391-92
(5th Cir. 2006); Herrera II, 313 F.3d at 883-85. Accordingly, the district court’s
judgment is AFFIRMED, the Government’s motion for summary affirmance is
GRANTED, and the Government’s alternative motion for an extension of time
to file an appellate brief is DENIED.




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