     Case: 12-40114     Document: 00512025139         Page: 1     Date Filed: 10/18/2012




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

                                                                            FILED
                                                                         October 18, 2012
                                     No. 12-40114
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GERARDO CASTANEDA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:11-CR-1146-1


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Gerardo Castaneda pleaded guilty to conspiracy and to possession with
intent to distribute 1000 kilograms or more of marijuana and received a sentence
of 120 months in prison. On appeal, he argues that the Government failed to
prove that he had knowledge of the quantity of marijuana that he possessed. As
Castaneda acknowledges, however, this argument is foreclosed by United States
v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 2009), which reaffirmed the holding
in United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003), that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40114    Document: 00512025139      Page: 2   Date Filed: 10/18/2012

                                  No. 12-40114

knowledge of drug type and quantity is not an element of possessing with intent
to deliver a controlled substance.
      During sentencing, the district court agreed with Castaneda’s request to
recommend placement at FCI Beaumont Low and training in diesel mechanics.
However, the written judgment recommended that Castaneda be placed in a
facility near Beaumont and that he participate in a vocational training program.
On appeal, Castaneda asserts that the recommendations in the judgment
constitute error because they do not specifically request placement at FCI
Beaumont Low and do not stipulate training in diesel mechanics; he maintains
that the error is critical because the desired training program is available at FCI
Beaumont Low, along with a recommended drug treatment program. The
Government concedes that there is an error in the judgment and that the case
should be remanded to conform the written judgment to the oral
recommendations. Because the record reflects the district court’s intent to make
the specific recommendations, a remand is appropriate. See United States v.
Bigelow, 462 F.3d 378, 380-81, 383 (5th Cir. 2006); United States v. Martinez,
250 F.3d 941, 942 (5th Cir. 2001).       Accordingly we AFFIRM Castaneda’s
conviction and sentence and REMAND this case so that the district court may
conform the written judgment to comply with the oral recommendations.
Castaneda’s motion to relieve his appointed counsel and proceed pro se is
DENIED. See United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).




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