IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40706
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARCOS VELA-TORRES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-01-CR-621-1)
February 19, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Marcos Vela-Torres appeals from his guilty-plea
conviction of possession of, with intent to distribute,
approximately 91 kilograms of marijuana, in violation of 21 U.S.C.
§ 841.
Vela-Torres contends the district court committed reversible
plain error by assigning one criminal history point for a sentence
imposed more than ten years before commencement of the instant
offense. See U.S.S.G. § 4A1.1, cmt. n. 3. This error, however,
*
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that this opinion should not be published and is not precedent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.
did not affect Vela-Torres’ guidelines range. Because the district
court could “lawfully and reasonably” impose the same sentence on
remand, Vela-Torres has not shown that this mistake constitutes
plain error. See United States v. Ravitch, 128 F.3d 865, 869 (5th
Cir. 1997).
Vela-Torres maintains that 21 U.S.C. § 841 is unconstitutional
in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000). As
Vela-Torres concedes, his contention 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); instead, he raises
the issue to preserve it for Supreme Court review.
Vela-Tores’ final contention, that the judgment inaccurately
reflects he must pay a $100 special assessment, lacks merit. The
judgment reflects that the assessment was remitted.
AFFIRMED
2