United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-41127
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-108-1
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Lopez appeals his guilty-plea conviction and sentence
for importing 35.34 kilograms of cocaine. He argues: (1) that
the district court erred when it denied a reduction in his total
offense level based on his minor role in the offense and (2) that
21 U.S.C. §§ 841, 952 and 960 are facially unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Lopez
concedes that his second argument is foreclosed but nevertheless
raises the issue to preserve it for possible further review.
*
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that this opinion should not be published and is not precedent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. 03-41127
-2-
The large quantity of cocaine that Lopez was transporting
supports the denial of a minor participant reduction despite
Lopez’s claim that he was only a courier. See United States v.
Rojas, 868 F.2d 1409, 1409-10 (5th Cir. 1989). The district
court therefore did not clearly err in determining that Lopez was
not entitled to a minor role reduction pursuant to U.S.S.G.
§ 3B1.2(b). See United States v. Zuniga, 18 F.3d 1254, 1261 (5th
Cir. 1994).
Lopez’s argument regarding the constitutionality of the
statutes of conviction is foreclosed by this court’s decision in
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).
The judgment of the district court is therefore AFFIRMED.