                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 29, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-50877
                          Summary Calendar


                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                               versus

                         JERRY LEE MASSEY,

                        Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 2:02-CR-661-All
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jerry Lee Massey appeals from his conviction for possession

with intent to distribute more than 100 kilograms of cocaine, in

violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A).

     Massey argues that the Government was bound to prove as an

element of the offense that he knew the drug quantity of the

controlled substance.   However, we are not convinced that either

the indictment nor the jury charge, when read as a whole and in the

context of the trial, required the jury to find knowledge of drug


     *
        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that this opinion should not be published and is not precedent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. 05-50877
                                       -2-

quantity as an element of the offense under 21 U.S.C. § 841.               See

United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003).

     Massey additionally argues that the evidence was insufficient

to prove that he knowingly possessed with intent to distribute more

than 100 kilograms of marijuana.            Massey failed to move for a

judgment of acquittal at the close of all evidence.             Accordingly,

“review is limited to determining whether there was a manifest

miscarriage of justice, that is, whether the record is devoid of

evidence pointing to guilt.”          United States v. Delgado, 256 F.3d

264, 274 (5th Cir. 2001) (citations and internal quotations marks

omitted).

     Massey readily admits that he knowingly possessed a controlled

substance with the intent to distribute it.              His contention that

the evidence was insufficient to prove his knowing possession of a

particular quantity is misguided:          knowledge of quantity is not an

element of an offense under

§ 841(a) and was not made the law of the case in this instance.

Gamez-Gonzalez, 319 F.3d at 700.

     Massey     also   asserts     that   the   district   court    improperly

permitted the Government to argue that the jury could consider

incidents not alleged in the indictment to determine whether Massey

possessed with intent to distribute more than 100 kilograms of

marijuana.    Any error was not prejudicial.           The court specifically

charged   the   jury   not   to    consider     such   extraneous    evidence.

Moreover, the strength of the evidence in support of Massey’s guilt
                           No. 05-50877
                                -3-

was overwhelming.     Thus, Massey has not established that the

challenged statements constituted improper remarks that prejudiced

his substantive rights. United States v. Munoz, 150 F.3d 401, 414-

15 (5th Cir. 1998).   AFFIRMED.
