United States Court of Appeals
Fifth Circuit
F I L E D
May 6, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-40567
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
ROBERTO CARLOS RAMOS,
Defendant-
Appellant.
-----------------------------------------------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1698-ALL
------------------------------------------------------------
Before SMITH, DeMOSS AND STEWART, Circuit Judges.
PER CURIAM:*
Roberto Carlos Ramos appeals the sentence he received after he pleaded guilty to possession
with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Ramos argues
that the district court committed plain error in sentencing him when it used the gross weight of
cocaine, which included its packaging. Because Ramos’s fact-based argument that the Presentence
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40567
-2-
Report (PSR) incorrectly calculated the quantity of cocaine involved in his offense could have been
resolved by the district court if he had properly raised the issue in the district court, Ramos has not
shown plain error. See Robertson v. Plano City of Texas, 70 F.3d 21, 23 (5th Cir. 1995). T h e
district court was entitled to make its drug quantity calculation without further inquiry because
Ramos did not present any evidence to refute the information in the PSR or his admission in his
factual basis that he possessed 2.04 kilograms of cocaine. See United States v. Puig-Infante, 19 F.3d
929, 943 (5th Cir. 1994).
Ramos also contends, for the first time on appeal, that 21 U.S.C. § 841 was rendered
unconstitutional by Apprendi v. New Jersey, 530 U.S. 466 (2000), because drug types and quantities
should be treated as elements of the offense of possession with intent to distribute. Ramos concedes
that his argument runs counter to this court’s caselaw; he raises the issue to preserve it for Supreme
Court review. Apprendi did not render 21 U.S.C. § 841 facially unconstitutional, and Ramos has not
shown error, plain or otherwise. See United States v. Vasquez, 298 F.3d 354, 356, 360 (5th Cir.),
cert. denied, 123 S. Ct. 546 (2002).
AFFIRMED.
-2-