                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-13473         ELEVENTH CIRCUIT
                                                        JAN 27, 2011
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                   D. C. Docket No. 08-00189-CR-6-TWT-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

RODOLFO HERNANDEZ,

                                                          Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (January 27, 2011)

Before EDMONDSON, CARNES, and PRYOR, Circuit Judges.


PER CURIAM:

     Rodolfo Hernandez appeals his conviction for conspiracy to possess with
intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii)

and 846. Although Hernandez was charged with a conspiracy involving 1,000

kilograms or more of marijuana, at his plea colloquy he admitted to a conspiracy

involving only 272 kilograms of marijuana. The district court accepted his guilty

plea and sentenced Hernandez to ten years imprisonment, which is the mandatory

minimum penalty for conspiracy to possess with intent to distribute 1,000

kilograms or more of marijuana. 21 U.S.C. § (b)(1)(A)(vii). Despite the fact that

Hernandez failed to object in the district court, he now contends that the it erred by

not considering the marijuana quantity to be an “essential element” of his charged

offense. Based on that premise, he argues that the district court should have

rejected his guilty plea because he admitted to a conspiracy involving only 272

kilograms and, for the same reason, that there was not an adequate factual basis

under Rule 11 of the Federal Rules of Criminal Procedure for the district court to

accept his guilty plea.

       We review these issues for plain error because Hernandez failed to raise

them in the district court. See United States v. Moriarty, 429 F.3d 1012, 1019–20

(11th Cir. 2005). “To establish plain error, a defendant must show there is (1)

error, (2) that is plain, and (3) that affects substantial rights.” Id. at 1020

       We have held that drug quantities are sentencing factors as opposed to



                                             2
elements of an offense defined in 21 U.S.C. § 841. See United States v. Baker, 432

F.3d 1189, 1233 (holding that under 21 U.S.C. § 841 “the specific amount and type

of drugs are not elements of the offense”) (emphasis added). Accordingly, because

drug quantity is a sentencing factor, the district court did not err, much less plainly

err, by not considering it to be an element of the Hernandez’s offense. See id.

      AFFIRMED.




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