United States v. Rodriguez

* 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that this opinion should not be published and is not precedent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.
** See Allen v. United States, 164 U.S. 492 (1896).
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40702
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABEL FRANCO RODRIGUEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-62-1
--------------------
October 8, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges
PER CURIAM:*
Abel Franco Rodriguez was convicted by a jury of possession
with intent to distribute less than 50 kilograms of marijuana. He
argues 1) that the district court’s note to the jury to continue
deliberations in an effort to reach a verdict in this case was an
impermissible abbreviated Allen** charge, and 2) that 21 U.S.C. §§

-- 1 of 2 --

No. 01-40702
-2-
841(a) and (b) are unconstitutional in light of the Supreme Court’s
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
The district court’s note to jury to continue deliberations
was not an abuse of discretion, and Rodriguez’s challenge with
respect to the note is without merit. See United States v. Warren,
594 F.2d 1046, 1050 (5th Cir. 1979); United States v. Staach, 987
F.2d 232, 242 (5th Cir. 1993).
As conceded by Rodriguez, this court has determined that his
Apprendi challenge to the constitutionality of the federal drug
statutes is without merit. See United States v. Slaughter, 238
F.3d 580, 581-82 (5th Cir. 2000), cert. denied, 532 U.S. 1045
(2001).
AFFIRMED.

-- 2 of 2 --