United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40291
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CAZARES-ALVARADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-138-3
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Cazares-Alvarado appeals his guilty-plea conviction and
sentence for conspiracy to possess with intent to distribute more
than five kilograms of cocaine. He argues that the district
court erred when it denied a reduction in his total offense level
based on his mitigating role in the offense and that 21 U.S.C.
§§ 841 and 860 are facially unconstitutional in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000). Cazares-Alvarado 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this opinion should not be published and is not precedent except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. 03-40291
-2-
Cazares-Alvarado’s construction of a hidden compartment in
which to conceal the large amount of cocaine involved in his
offense was not “peripheral to the advancement of the illicit
activity.” See United States v. Thomas, 932 F.2d 1085, 1092 (5th
Cir. 1991). The district court therefore did not clearly err in
determining that Cazares-Alvarado was not entitled to a
mitigating role reduction pursuant to U.S.S.G. § 3B1.2. See
United States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994).
Cazares-Alvarado’s argument regarding the constitutionality
of the statutes of conviction, raised for the first time on
appeal, is foreclosed by our decision in United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000). Cazares-Alvarado
has failed to demonstrate error, plain or otherwise, regarding
Apprendi. See id.
The judgment of the district court is therefore AFFIRMED.