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. 09-40360

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

GERMON MONTREL WINSTON,

Defendant–Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 2:08:cr-00746-1

Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Germon Montrel Winston appeals his conviction for three counts: two

counts of possession with intent to distribute controlled substances under 21

U.S.C. § 841 and one count of conspiracy to possess with intent to distribute

controlled substances under 21 U.S.C. §§ 846 and 841. Winston argues that the

Government did not prove beyond a reasonable doubt that he knew the type and

quantity of the drugs he possessed. Because we have held that “knowledge of

the drug type and quantity is not an element that must be . . . proved” beyond

United States Court of Appeals

Fifth Circuit

F I L E D

December 10, 2009

Charles R. Fulbruge III

Clerk
No. 09-40360

2

a reasonable doubt, we affirm. United States v. Gamez-Gonzales, 319 F.3d 695,

700 (5th Cir. 2003); see also United States v. Betancourt, No. 08-40909, 2009 WL

3233532, at *4 (5th Cir. Oct. 9, 2009) (re-affirming Gamez-Gonzalez). 

Winston, while driving a tractor-trailer rig, pulled into the Sarita, Texas,

Border Patrol checkpoint. As Customs and Border Protection (“CBP”) Agent

Kavonte Wilson questioned Winston, CBP Agent Manuel Ozuna walked a

detection canine around the rig. The dog alerted Agent Ozuna to the tractor

portion of the vehicle. Agent Wilson directed Winston to drive the rig to a

secondary inspection area, where CBP agents conducted a second canine

inspection, escorted Winston to a waiting area, and conducted a search of the

vehicle. CPB agents found 90.6 kilograms of marijuana, 3.1 kilograms of

cocaine, $38,000 in $20 bills, and a bottle of “Scent Away,” which “could be used

to try to mask the odor of marijuana.” 

The grand jury charged Winston with three counts: (1) conspiracy to

possess with the intent to distribute more than five hundred grams of cocaine

and more than fifty kilograms of marijuana in violation of 21 U.S.C. § 846 and

§ 841(a)(1) & (b)(1)(B), and 18 U.S.C. § 2; (2) possession with intent to distribute

more than five hundred grams of cocaine in violation of 21 U.S.C. § 841(a)(1) &

(b)(1)(B), and 18 U.S.C. § 2; and (3) possession with intent to distribute more

than fifty kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B),

and 18 U.S.C. § 2. The jury found Winston guilty on all counts, and Winston

appealed.

On appeal, Winston argues that the Government did not prove beyond a

reasonable doubt that he knew the specific types and quantities of drugs he

possessed. Winston acknowledges that we have previously held that “even

though the drug type and quantity must now be proved beyond a reasonable

doubt, knowledge of the drug type and quantity is not an element that must be

so proved.” Gamez-Gonzales, 319 F.3d at 700 (emphasis added). Winston
No. 09-40360

3

argues, however, that we should revisit the Gamez-Gonzales holding in light of

Flores-Figuera v. United States, in which the Supreme Court held that if the

Governm ent charges a defendant with a v iolation of 18

U.S.C. § 1028A(a)(1)—the federal identity theft statute—the Government must

prove beyond a reasonable doubt that “the defendant knew that the means of

identification at issue belonged to another person.” 129 S. Ct. 1886, 1888–94

(2009). 

In Betancourt, we held that Flores-Figuera did not overturn GamezGonzales. See Betancourt, 2009 WL 3233532, at *4. Specifically, we held that

“the structure of § 841 is different from that of § 1028A(a)(1),” and that “[a]

common-sense, natural reading of § 841 leads to the inevitable conclusion that

Congress did not intend for the word ‘knowingly’ in § 841(a) to modify language

in § 841(b).” Id. at *5,*6. Because Gamez-Gonzales precludes Winston’s only

argument, and Betancourt affirmed Gamez-Gonzales’s holding, we affirm

Winston’s conviction.

AFFIRMED.