     Case: 09-40399     Document: 00511085669          Page: 1    Date Filed: 04/20/2010




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

                                                 FILED
                                                                            April 20, 2010
                                     No. 09-40399
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FLORENCIO ESPINOZA-FAJARDO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:08-CR-779-1


Before SMITH, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Florencio Espinoza-Fajardo appeals his guilty-plea convictions for
possession with intent to distribute cocaine and marijuana in violation of 21
U.S.C. § 841(a)(1) and (b)(1). He argues that, in light of the recent Supreme
Court decision in Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), the
factual basis for his guilty plea was insufficient to support his convictions
because it did not establish that he knew the specific type and quantity of
controlled substances he possessed. We review this issue, raised for the first

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40399   Document: 00511085669 Page: 2       Date Filed: 04/20/2010
                                No. 09-40399

time on appeal, for plain error. United States v. Marek, 238 F.3d 310, 315 (5th
Cir. 2001).
      The issue raised by Espinoza-Fajardo is foreclosed by current circuit
precedent, see United States v. Gamez-Gonzalez, 319 F.3d 695, 699-700 (5th Cir.
2003) (holding that knowledge of drug type or quantity is not an element of an
offense under 21 U.S.C. § 841), which has not been overruled by Flores-Figueroa.
See United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009), cert.
denied, 2010 WL 562914 (Mar. 22, 2010) (No. 09-9048).          Accordingly, the
judgment of the district court is AFFIRMED.




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