United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS December 9, 2003
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-40752
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMBROSIO GARCIA-CAMACHO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(C-03-CR-27-1)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Ambrosio Garcia-Camacho (“Garcia”) appeals his guilty-plea
conviction and sentence for possession with intent to distribute
more than 500 grams of cocaine, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(B). Garcia claims the district court clearly
erred in refusing to grant his request for a two level reduction
for being a minor participant pursuant to U.S.S.G. § 3B1.2(b).
Garcia contends that he is eligible for a minor participant
*
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this opinion should not be published and is not precedent except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 because he was merely a one-time drug courier even though
he was the only defendant indicted in this case and was the only
person involved in the transportation of this cocaine. A district
court’s interpretation of the Guidelines is reviewed de novo; its
findings of fact, for clear error. E.g., United States v.
Claiborne, 132 F.3d 253, 254 (5th Cir.), cert. denied, 523 U.S.
1144 (1998).
Although a drug courier is not precluded from qualifying as a
minor participant, see United States v. Sotelo, 97 F.3d 782, 799
(5th Cir. 1996), a defendant “may be a courier without being
substantially less culpable that the average participant”. United
States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995). The large
quantity of cocaine being transported by Garcia supports the
district court’s determination that Garcia was not a minor
participant. See United States v. Rojas, 868 F.2d 1409, 1409-10
(5th Cir. 1989). And, obviously, the district court was not
required to accept Garcia’s account of his role in the drug
trafficking scheme. See United States v. Buenrostro, 868 F.2d 135,
138 (5th Cir. 1989), cert. denied, 495 U.S. 923 (1990).
Accordingly, the ruling was not clearly erroneous. See id.
For the first time on appeal, Garcia contends that 21 U.S.C.
§§ 841(a) and (b) are facially unconstitutional in the light of
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). As Garcia
concedes, his contention is foreclosed by United States v.
2
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532
U.S. 1045. He raises the issue only to preserve it for possible
further review.
AFFIRMED
3