United States v. Ramos

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                               No. 01-41030
                             Summary Calendar



UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

versus

JOSE LUIS RAMOS,

                                                Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                         (L-01-CR-451-ALL)
                       --------------------
                           June 14, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Jose Luis Ramos appeals his sentence,

which was assessed after he was convicted of possession with intent

to distribute in excess of five kilograms of cocaine.                  Ramos

contends that the district court erred in denying him an offense

level reduction pursuant to United States Sentencing Guidelines

(U.S.S.G.) § 3B1.2 for his role in the offense.          He argues that the

district   court   applied   its   de   facto   policy    of   refusing   the


     *
        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that this opinion should not be published and is not precedent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.
reduction to drug couriers, and that, in ruling on the reduction,

the court failed to consider the Sentencing Commission’s 2001

amendment to the commentary to U.S.S.G. § 3B1.2.

     We review for clear error the sentencing court’s determination

that a defendant did not play a minor role in an offense.                United4

States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994).                  Here, the

district court found that Ramos played an important role in the

distribution of the cocaine when he attempted to transport a large

quantity of the drug through the border patrol checkpoint.                 These

factual findings, which were specific to Ramos’s offense, are not

clearly erroneous under either the 2000 or 2001 commentary to

U.S.S.G. § 3B1.2.     See United States v. Marmolejo, 106 F.3d 1213,

1217 (5th Cir. 1997); U.S.S.G. Suppl. to App. C amend. 635; United

States v. Rodriquez De Varon, 175 F.3d 930, 940-44 (11th Cir.

1999).

     Ramos   also    asserts   that       21   U.S.C.   §   841   is    facially

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   As Ramos concedes, however, his argument is foreclosed by

circuit precedent.     See United States v. Slaughter, 238 F.3d 580,

582 (5th Cir. 2000), cert. denied., 532 U.S. 1045 (2001).                For the

foregoing reasons, the sentence imposed by the district court is

AFFIRMED.




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