IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40251
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS GUZMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CR-121-1
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February 13, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jose Luis Guzman, proceeding pro se, appeals from his
guilty-plea conviction and sentence for possession with the
intent to distribute cocaine.
Guzman argues that the district court erred in failing to
account for Guzman’s minor role in the offense. Guzman presents
his issue as one pursuant to U.S.S.G. § 3B1.2. However, the
issue was presented to the district court through a motion for a
downward departure. See U.S.S.G. § 5K2.0. Consequently, we
construe the argument as whether the district court erred in
*
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that this opinion should not be published and is not precedent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.
No. 00-40251
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denying the motion for downward departure based in part on
Guzman’s purported minor role in the offense. This court has
“jurisdiction to review a district court’s decision not to depart
downward from the guideline range only if the district court
based its decision upon an erroneous belief that it lacked the
authority to depart.” United States v. Landerman, 167 F.3d 895,
899 (5th Cir. 1999). The district court stated at sentencing
that it had the authority to depart and declined to do so. Thus,
the issue is not reviewable. See Landerman, 167 F.3d at 899.
Guzman argues that the district court erred in adjusting his
offense level by two for possession of firearms, pursuant to
U.S.S.G. § 2D1.1(b)(1). The district court alternatively
construed the motion for downward departure as an objection to
this enhancement and denied the objection. “The adjustment
should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.”
U.S.S.G. § 2D1.1, comment. (n.3). The district court relied upon
the information in the presentence report (PSR), and “a PSR bears
sufficient indicia of reliability to permit the sentencing court
to rely on it at sentencing.” United States v. Ayala, 47 F.3d
688, 690 (5th Cir. 1995). The district court’s finding is not
clearly erroneous. See United States v. Castillo, 77 F.3d 1480,
1498-99 (5th Cir. 1996).
For the first time on appeal, Guzman asserts that the two-
level adjustment pursuant to U.S.S.G. § 2D1.1(b)(1) was error in
light of Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000),
which held “any fact that increases the penalty for a crime
No. 00-40251
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beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Through the signed
plea agreement, Guzman waived his right to appeal his sentence
except for guideline determinations. Even if this issue were
properly before this court, no error, plain or otherwise, is
evident. See United States v. Keith, 230 F.3d 784, 787 (5th Cir.
2000); United States v. Calverley, 37 F.3d 160, 162-64 (1994) (en
banc).
AFFIRMED.