United States v. Rodolfo Hernandez , 411 F. App'x 265 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13473 ELEVENTH CIRCUIT
JAN 27, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00189-CR-6-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO HERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 27, 2011)
Before EDMONDSON, CARNES, and PRYOR, Circuit Judges.
PER CURIAM:
Rodolfo Hernandez appeals his conviction for conspiracy to possess with
intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii)
and 846. Although Hernandez was charged with a conspiracy involving 1,000
kilograms or more of marijuana, at his plea colloquy he admitted to a conspiracy
involving only 272 kilograms of marijuana. The district court accepted his guilty
plea and sentenced Hernandez to ten years imprisonment, which is the mandatory
minimum penalty for conspiracy to possess with intent to distribute 1,000
kilograms or more of marijuana. 21 U.S.C. § (b)(1)(A)(vii). Despite the fact that
Hernandez failed to object in the district court, he now contends that the it erred by
not considering the marijuana quantity to be an “essential element” of his charged
offense. Based on that premise, he argues that the district court should have
rejected his guilty plea because he admitted to a conspiracy involving only 272
kilograms and, for the same reason, that there was not an adequate factual basis
under Rule 11 of the Federal Rules of Criminal Procedure for the district court to
accept his guilty plea.
We review these issues for plain error because Hernandez failed to raise
them in the district court. See United States v. Moriarty, 429 F.3d 1012, 1019–20
(11th Cir. 2005). “To establish plain error, a defendant must show there is (1)
error, (2) that is plain, and (3) that affects substantial rights.” Id. at 1020
We have held that drug quantities are sentencing factors as opposed to
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elements of an offense defined in 21 U.S.C. § 841. See United States v. Baker, 432
F.3d 1189, 1233 (holding that under 21 U.S.C. § 841 “the specific amount and type
of drugs are not elements of the offense”) (emphasis added). Accordingly, because
drug quantity is a sentencing factor, the district court did not err, much less plainly
err, by not considering it to be an element of the Hernandez’s offense. See id.AFFIRMED.
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