United States v. Pena

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40831
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL PENA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-00-CR-57-1
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February 13, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Joel Pena appeals his guilty-plea conviction and sentence
for possession with the intent to distribute more than five
kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A). He asserts that his plea was involuntary because,
although he informed the district court that he intended to
possess marijuana rather than cocaine, the district court led him
to believe that his knowledge of the specific drug possessed was
irrelevant, which, he asserts, is error following Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 2362-63 (2000).

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No. 00-40831
-2-
Because Pena’s argument was not raised in the district
court, it is reviewed for plain error only. See United States v.
Meshack, 225 F.3d 556, 575 (5th Cir. 2000). Pena has not shown
any error, plain or otherwise, because he was sentenced to the
statutory minimum term of imprisonment, rendering Apprendi
inapplicable. See 21 U.S.C. § 841(b)(1)(A); United States v.
Doggett, 230 F.3d 160, 166 (5th Cir. 2000), petition for cert.
filed (U.S. Jan. 4, 2001) (No. 7819); Meshack, 225 F.3d at 575-
77; see also United States v. Keith, 230 F.3d 784, 787 (5th Cir.
2000). To the extent that Pena argues, without reference to
Apprendi, that his plea was involuntary because he did not admit
to knowingly possessing cocaine, the argument is without merit.
See United States v. Valencia-Gonzales, 172 F.3d 344, 345 (5th
Cir.), cert. denied, 528 U.S. 894 (1999); United States v.
Cartwright, 6 F.3d 294, 303 (5th Cir. 1993).
AFFIRMED.

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