United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-41663
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUMERCINDO SALINAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-189-1
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Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Gumercindo Salinas appeals the mandatory-minimum 60-month
sentence imposed following his guilty plea to possession with
intent to distribute more than 500 grams of cocaine, in violation
of 21 U.S.C. § 841. Salinas contends that his prior Texas
conviction and suspended jail sentence for driving while
intoxicated (DWI) were constitutionally invalid and could
not be included in his criminal history score for purposes of
determining his sentencing range under the United States
*
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that this opinion should not be published and is not precedent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. 02-41663
-2-
Sentencing Guidelines. He contends that absent the one point
assessed for that conviction, he would have qualified for a
safety-valve reduction from the mandatory-minimum sentence
pursuant to U.S.S.G. § 5C1.2. He also argues for the first time
on appeal that 21 U.S.C. § 841 is unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). He concedes that
this latter argument is foreclosed by this court’s precedent, but
he raises it to preserve it for possible Supreme Court review.
Salinas did not meet his burden of proving the
constitutional invalidity of the DWI conviction by producing
evidence in support of his invalid-counsel-waiver argument.
See United States v. Osborne, 68 F.3d 94, 100-01 (5th Cir. 1995).
In addition, even without the criminal history point assessed
for that conviction, the district court stated at sentencing that
Salinas would not qualify for the safety valve because he did not
debrief truthfully, and that determination is plausible in light
of the record as a whole. See United States v. Edwards, 65 F.3d
430, 432 (5th Cir. 1995).
Salinas’ Apprendi argument is foreclosed. See United States
v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).
AFFIRMED.