United States v. Krueck ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41040
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS GEORGE KRUECK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-1155-ALL
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September 6, 2002
Before JOLLY, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Thomas George Krueck has appealed his conviction for
possession with intent to distribute 50 kilograms or more of
marijuana, in violation of 21 U.S.C. § 841(a) & (b)(1)(C).
Krueck contends that, Apprendi v. New Jersey, 530 U.S. 466
(2000), the Government was required to prove that he knew the
quantity of the drug involved in his offense. Krueck contends
that the Government failed to prove that he knowingly possessed
*
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this opinion should not be published and is not precedent except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.
No. 01-41040
-2-
more than 50 kilograms of marijuana. Prior to Apprendi, the
Government was not required to prove that the defendant knew the
precise quantity or type of the drug he possessed. See United
States v. Valencia-Gonzales, 172 F.3d 344, 345-46 (5th Cir.
1999). Apprendi did not overrule this jurisprudence. See United
States v. Cazares-Ramirez, No. 01-40835 (5th Cir. Apr. 22, 2002)
(unpublished); United States v. Puente-Vasquez, No. 01-40767 (5th
Cir. Mar. 27, 2002) (unpublished); see also United States v.
Collazo-Aponte, 281 F.3d 320, 326 (1st Cir. 2002), petition for
cert. filed, No. 01-10893 (May 29, 2002); United States v.
Barbosa, 271 F.3d 438, 459 (3d Cir. 2001); United States v.
Sheppard, 219 F.3d 766, 768 n.2 (8th Cir. 2000), cert. denied,
531 U.S. 1200 (2001); United States v. Carrera, 259 F.3d 818, 830
(7th Cir. 2001).
Krueck contends for the first time on appeal, that 21 U.S.C.
§ 841 is facially unconstitutional under Apprendi. He concedes
that this contention is foreclosed by the jurisprudence of this
court, but he seeks to preserve the issue for Supreme Court
review. See United States v. Slaughter, 238 F.3d 580, 581 (5th
Cir.), cert. denied, 532 U.S. 1045 (2001). The judgment is
AFFIRMED.