United States v. Jose Luis Sotelo-Rivera

ORDER

The appellee’s Petition for Rehearing is hereby GRANTED. The Opinion previously filed on June 26, 1990, and reported at 906 F.2d 1324 , is hereby WITHDRAWN.

Jose Luis Sotelo-Rivera (“Sotelo”) appeals from his conviction for possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841 (a)(1) and 841(b)(l)(B)(vii) (1988). Sotelo claims the trial court erred in denying his motion for judgment of acquittal and in refusing to instruct the jury on the lesser-included offense of possession with intent to distribute less than 100 kilograms of marijuana. We affirm the conviction and remand for resentencing.

FACTS AND PROCEEDINGS

At about 7:00 p.m. on October 3, 1988, U.S. Customs Special Agent Lee Morgan was traveling north on Leslie Canyon Road approximately six miles from Douglas, Arizona. At that time, Agent Morgan noticed a man wearing a white baseball cap, T-shirt, blue jeans, and white tennis shoes walking south towards Douglas. After continuing north one-half mile, Morgan discovered a green and white Blazer parked on the roadside facing south.

Morgan continued up the road, but returned to the Blazer ten minutes later. He…