     Case: 17-40980      Document: 00514798554         Page: 1    Date Filed: 01/16/2019




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


                                    No. 17-40980
                                                                            FILED
                                                                     January 16, 2019
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

JAVIER BOCANEGRA, JR.,

                                                 Defendant - Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:16-CR-711-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges:
PER CURIAM: *
       Javier Bocanegra Jr. appeals his conviction and 20-year sentence for
conspiracy to possess with intent to distribute 24.52 kilograms of cocaine in
violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A). He argues that the
evidence was insufficient to support his conviction because it relies upon the
incredible testimony of two cooperating witnesses; because, even if the two
cooperating witnesses’ testimony is considered credible, it did not show that he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40980    Document: 00514798554     Page: 2   Date Filed: 01/16/2019


                                 No. 17-40980

had knowledge of what was being transported by the charged conspiracy; and
because it is insufficient to show the controlled substance found in the load
vehicle used by the conspiracy was cocaine. He also challenges the imposition
of the 20-year mandatory minimum sentence under § 841(b)(1).
      “To establish a conspiracy [under § 846], the government must prove
that: (1) an agreement existed between two or more persons to violate federal
narcotics law, (2) the defendant knew of the existence of the agreement, and
(3) the defendant voluntarily participated in the conspiracy.” United States v.
Ochoa, 667 F.3d 643, 648 (5th Cir. 2012). The two cooperating witnesses
testified that they conspired with Bocanegra to transport drugs across the
United States-Mexico border. This court will not revisit the district court’s
credibility determination of the two cooperating witnesses who corroborated
each other, particularly where Bocanegra has not shown their testimony was
incredible as a matter of law. See United States v. Chapman, 851 F.3d 363,
376-77, 378 (5th Cir. 2017). Moreover, the conviction did not rest exclusively
on the testimony of those witnesses as their accounts of the events were
corroborated by surveillance videos, phone records, and receipts.
      Additionally, Bocanegra argues that the evidence was insufficient to
support his conviction because the Government did not prove beyond a
reasonable doubt that the controlled substance in the car was in fact cocaine.
However, as drug quantity and type are not formal elements of a conspiracy
offense, any failure by the Government to prove quantity and type affects only
the statutorily prescribed sentence that the court may impose. See United
States v. Daniels, 723 F.3d 562, 572-74 (5th Cir. 2013). Thus, if the evidence
does not support a finding that a particular drug type or quantity was involved,
a defendant’s conviction is not undermined. See id. at 572-74. Accordingly,
when viewed in the light most favorable to the Government, the evidence was



                                       2
    Case: 17-40980    Document: 00514798554     Page: 3   Date Filed: 01/16/2019


                                 No. 17-40980

sufficient to establish that Bocanegra conspired to distribute a controlled
substance in violation of § 846. See United States v. Smith, 895 F.3d 410, 415-
16 (5th Cir. 2018).
      Finally, Bocanegra concedes that our precedent forecloses his arguments
that his prior Texas deferred adjudication for a felony drug offense does not
constitute a conviction for purposes of sentencing under § 841(b) and that
application of the sentencing enhancement under § 841(b) violates the Full
Faith and Credit Clause of the Constitution. See United States v. Fazande, 487
F.3d 307, 309 (5th Cir. 2007); United States v. Cisneros, 112 F.3d 1272, 1282
(5th Cir. 1997) (finding that a “guilty plea that resulted in a deferred
adjudication was a ‘prior conviction’ for purposes of sentence enhancement
under § 841(b)(1)(A)”). Moreover, even if he is ultimately sentenced to less
than a year for the state offense, it is considered a felony drug offense because
it is a final conviction that “is punishable by imprisonment for more than one
year.” See 21 U.S.C. § 802(44) (emphasis added); Dickerson v. New Banner
Institute, 460 U.S. 103, 106-08, 113-14, 122 (1983).
      AFFIRMED.




                                       3
