Rodriguez

MEMORANDUM **

Juan Carlos Rodriguez challenges his conviction under 21 U.S.C. §§ 841 (a)(1), 846 and 18 U.S.C. § 2 on three independent grounds. Because the parties are familiar with the factual and procedural history of this case, we do not recount it here except as necessary to explain our disposition. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

1. Sufficiency of the Evidence. Rodriguez argues that by including the language “more than one kilogram of a substance containing heroin” in the indictment, the Government made that specific drug quantity an element of the offense which had to be proven to the jury beyond a reasonable doubt. Thus, Rodriguez argues that when the parties stipulated to a drug quantity of 997.1 grams of heroin, the Government failed to failed to prove every element of the offense. We find this argument unpersuasive.

We have previously held that drug quantity is not an element of the offense under 21 U.S.C. § 841 , but is instead a sentencing factor. United States v. Nordby, 225 F.3d 1053, 1058 (9th Cir. 2000). Including drug quantity in the indictment here was merely surplusage. It did not, therefore, become an element of the offense. See…