Conference Calendar UNITED STATES OF AMERICA v. Rosario Muniz Tellez

* 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should not be published and is not precedent except under the limited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. 07-50241
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROSARIO MUNIZ TELLEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:06-CR-158-ALL
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Rosario Muniz Tellez appeals his conviction following a jury trial for being
an unlawful user of a controlled substance in possession of ammunition in
violation of 18 U.S.C. § 922(g)(3). He argues that the district court erred in
denying his request for an instruction and jury charge that included the
definition of “unlawful user” that this court used in United States v. Herrera, 289
F.3d 311, 323-24 (Herrera I), vacated, United States v. Herrera, 313 F.3d 882 (5th
Cir. 2002) (en banc) (Herrera II). The Government moves for summary
United States Court of Appeals
Fifth Circuit
F I L E D
October 24, 2007
Charles R. Fulbruge III
Clerk

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No. 07-50241
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affirmance on the ground that Muniz Tellez’s argument is foreclosed by our
precedent or, in the alternative, for an extension of time to file an appellate brief.
We review a district court’s refusal to give a requested jury instruction for
abuse of discretion. United States v. Cain, 440 F.3d 672, 674 (5th Cir. 2006).
Muniz Tellez’s argument that the district court erred in refusing to give the jury
a Herrera I instruction is foreclosed by our precedent, particularly our decision
in United States v. Patterson, 431 F.3d 832, 837-39 (5th Cir. 2005), cert. denied,
126 S. Ct. 2043 (2006). See also United States v. McCowan, 469 F.3d 386, 391-92
(5th Cir. 2006); Herrera II, 313 F.3d at 883-85. Accordingly, the district court’s
judgment is AFFIRMED, the Government’s motion for summary affirmance is
GRANTED, and the Government’s alternative motion for an extension of time
to file an appellate brief is DENIED.

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