     Case: 18-50382      Document: 00515310810         Page: 1    Date Filed: 02/14/2020




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


                                    No. 18-50382
                                                                               FILED
                                                                        February 14, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TEOFILO VELA DIAZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:17-CR-723-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       A jury convicted Defendant-Appellant Teofilo Vela Diaz of conspiracy to
import methamphetamine, and he was sentenced below the advisory
guidelines range to 300 months of imprisonment followed by 10 years of
supervised release. He asserts that (1) the evidence was insufficient to prove
that he knowingly possessed a controlled substance because the Government
presented no evidence that he knew the specific type or quantity of drugs


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 18-50382

discovered in a codefendant’s car, and (2) the district court erred by holding
him accountable for the quantity of methamphetamine discovered in the car
for purposes of determining his base offense level. See U.S.S.G. § 2D1.1(a).
      Relying on Rehaif v. United States, 139 S. Ct. 914 (2019), and seeking to
preserve the issue for further review, Vela Diaz contends that the Government
did not prove his knowledge of the drug type and quantity involved in the
offense. He concedes that (1) relief on this issue is foreclosed by United States
v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009), and (2) the Government is
not required to prove knowledge of the drug type and quantity as an element
of a 21 U.S.C. § 841 offense. Neither is knowledge of drug type and quantity
an element that must be proved to achieve a conviction for an offense under
the related drug importation statutes, 21 U.S.C. §§ 952(a) and 960(a). United
States v. Restrepo-Granda, 575 F.2d 524, 527 (5th Cir. 1978); see United States
v. Valencia-Gonzales, 172 F.3d 344, 345-46 (5th Cir. 1999). The Government
was thus not required to prove that Vela Diaz knew the type and quantity of
the controlled substance involved in his drug importation offense.
      It is arguable that Vela Diaz waived any challenge to the drug quantity
by objecting in the district court to the total offense level and then indicating
at sentencing that he had no objection to the base offense level. See United
States v. Rico, 864 F.3d 381, 383 (5th Cir. 2017); see also United States v.
Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). But even if the argument is
not waived, it is subject to plain error review. See United States v. Rojas, 812
F.3d 382, 413 (5th Cir. 2016). The attributable drug quantity is a factual issue
at sentencing, United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005),
so it is not reviewable under the plain error standard, United States v.
Claiborne, 676 F.3d 434, 438 (5th Cir. 2012), since “[q]uestions of fact capable




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of resolution by the district court upon proper objection at sentencing can never
constitute plain error,” United States v. Lopez, 923 F.2d 47, 50 (5th Cir.1991).
      Regardless of the foregoing observations, the record reflects that the
district court properly determined that Vela Diaz should be held accountable
for the methamphetamine discovered in the car because his direct involvement
in importing the drug or based on his relevant conduct, or both. See U.S.S.G.
§ 1B1.3(a)(1)(B). Finally, given the district court’s observation at sentencing
that Vela Diaz assisted others in importing the methamphetamine and the
court’s adoption of the presentence report, Vela Diaz has shown no error, plain
or otherwise, in connection with his contention that the relevant conduct
findings were inadequate. See United States v. Carreon, 11 F.3d 1225, 1231,
1236 (5th Cir. 1994).
      We note that Vela Diaz pleaded not guilty and proceeded to trial but that
the written judgment states that he pleaded guilty to Count One of the
indictment. This is a clerical error that is subject to correction pursuant to
Federal Rule of Criminal Procedure 36. See United States v. Mackay, 757 F.3d
195, 196 (5th Cir. 2014).
      The judgment of the district court is AFFIRMED, and the matter is
remanded for correction of the clerical error in the judgment.




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