UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40224
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN ZUNIGA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-01-CR-443-1)
January 24, 2003
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Ruben Zuniga appeals his guilty-plea conviction for possession
with intent to distribute more than 50 kilograms of marihuana, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). Zuniga contends
the district court erred by imposing, pursuant to U.S.S.G. § 3B1.4,
a two-level sentencing enhancement for using a minor to avoid
detection of an offense.
*
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that this opinion should not be published and is not precedent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.
A district court’s interpretation and application of the
Sentencing Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Lowder, 148 F.3d 548,
552 (5th Cir. 1998). Section 3B1.4 authorizes a two-level increase
“[i]f the defendant used or attempted to use a person less than
eighteen years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense....”
Zuniga took inconsistent positions with respect to his
companion and her child, who were Zuniga’s passengers in the
vehicle transporting marihuana. See United States v. Alarcon, 261
F.3d 416, 423 (5th Cir. 2001), cert. denied, 122 S. Ct. 854 (2002).
The district court did not clearly err in finding Zuniga and his
companion transported the child to evade suspicion by customs
agents.
Zuniga also asserts, for the first time on appeal, that the
provisions in 21 U.S.C. § 841(a) and (b) are unconstitutional in
the light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Zuniga
concedes his contention is foreclosed by United States
v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532
U.S. 1045 (2001); he raises it to preserve it for Supreme Court
review.
AFFIRMED
2
United States v. Zuniga
Combined Opinion