Duarte-Torres

MEMORANDUM **

Defendant Leandro Duarte-Torres appeals his conviction for distribution of methamphetamine. Because he did not mention below either of the issues that he raises on appeal, we review for plain error. Jones v. United States, 527 U.S. 373, 388 , 119 S.Ct. 2090 , 144 L.Ed.2d 370 (1999).

A. Jury Instruction on Count Two

Count two of the indictment charged Defendant with distributing more than 50 grams of a mixture containing methamphetamine. Defendant contends that the district court erred by instructing *694 the jury that it could convict on count two if it found beyond a reasonable doubt either that the drug quantity exceeded 50 grams of a mixture containing methamphetamine or that the drug quantity exceeded five grams of pure methamphetamine.

Although that instruction was erroneous because it added to the indictment, the error did not affect Defendant’s substantial rights. The parties stipulated that the drug quantity involved in the March 31 transaction was 109.1 grams of a mixture containing 31.6 grams of actual methamphetamine. That stipulation established both (1) more than 50 grams of a mixture containing methamphetamine and (2) more than five grams of pure…