United States v. Lopez-Chavez ( 2023 )

Case: 22-40547 Document: 00516656132 Page: 1 Date Filed: 02/24/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-40547
FILED
February 24, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Edwin Noe Lopez-Chavez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:21-CR-813-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Following a jury trial, Edwin Noe Lopez-Chavez was convicted of one
count of possessing with intent to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Lopez-Chavez appeals his
conviction. For the reasons below, we AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40547 Document: 00516656132 Page: 2 Date Filed: 02/24/2023
No. 22-40547
On appeal, Lopez-Chavez maintains that his conviction should be
reversed because the district court’s instructions to the jury constructively
amended his indictment, thereby violating his Fifth Amendment rights. He
contends that because the indictment alleges that he “knowingly and
intentionally” committed the offense, yet the district court’s instructions to
the jury only provided the word “knowingly,” a constructive amendment
occurred. Because Lopez-Chavez raises his claim for the first time on appeal,
plain error review applies. See United States v. Stanford, 805 F.3d 557, 566
(5th Cir. 2015).
Although the offense was charged in the conjunctive, the statute itself
is disjunctive. See 21 U.S.C. § 841(a)(1). “It is well-established in this Circuit
that a disjunctive statute may be pleaded conjunctively and proved
disjunctively.” United States v. Haymes, 610 F.2d 309, 310 (5th Cir.
1980); see also United States v. Bennett, 874 F.3d 236, 257 (5th Cir. 2017);
United States v. Holley, 831 F.3d 322, 328 & n.14 (5th Cir. 2016). Thus, a
determination that Lopez-Chavez committed the offense knowingly does not
violate the Fifth Amendment and does not constitute a constructive
amendment of the indictment. See Bennett, 874 F.3d at 257. Accordingly,
Lopez-Chavez has not shown that the district court committed a clear or
obvious error for purposes of plain error review. See Stanford, 805 F.3d at
566.
AFFIRMED.
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