IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40486
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL ANTONIO PORRAS, JR.,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-663-ALL
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March 19, 2003
Before REAVLEY, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Saul Antonio Porras, Jr., appeals his sentence upon his
guilty-plea conviction of possessing methamphetamine with intent
to distribute it, in violation of 21 U.S.C. § 841(a)(1). We
AFFIRM.
For the first time on appeal Porras contends that, in light
of Apprendi v. New Jersey, 530 U.S. 466 (2000), § 841(a) and (b)
are unconstitutional. Porras concedes that his argument is
*
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that this opinion should not be published and is not precedent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. 02-40486
-2-
foreclosed by United States v. Slaughter, 238 F.3d 580 (2001),
and he presents the claim only to preserve it for Supreme Court
review.
Porras argues, also for the first time on appeal, that
because under Apprendi the type of controlled substance involved
is an element of the offense, the factual basis was insufficient
to support his plea since he admitted only that he intended to
possess marijuana. The court recently rejected this argument in
United States v. Gamez-Gonzalez, ___ F.3d ___ (5th Cir. Jan. 27,
2003, No. 02-40297), 2003 WL 168650 at *3-*4.
Porras contends that the district court erred by denying his
request for a two-level downward adjustment under U.S.S.G.
§ 3B1.2(b) because of his minor role in the offense as a mere
courier. The record refutes Porras’s assertion that he requested
and was refused a § 3B1.2 adjustment in the district court,
thereby preserving the issue for review; and the district court’s
not making the adjustment did not constitute plain error. See
United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994)(en banc).
The judgment of the district court is AFFIRMED.