United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 1, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41421
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN LOPEZ-CARDENAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-452-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Juan Lopez-Cardenas pleaded guilty to possession of more than
100 kilograms of marijuana with intent to distribute and has
appealed his sentence. Lopez was among a group of persons carrying
bundles of marijuana across the United States border with Mexico.
Lopez contends that he should have been sentenced on the basis of
the marijuana he carried only and that his offense level should
have been adjusted because he had a minor role.
Under U.S.S.G. § 2D1.1(a)(3), the base offense level for a
*
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this opinion should not be published and is not precedent except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.
defendant convicted of a drug offense is determined based on the
quantity of drugs involved. United States v. Hernandez-Coronado,
39 F.3d 573, 574 (5th Cir. 1994). Under U.S.S.G. § 1B1.3(a)(1),
“[t]his quantity includes both drugs with which the defendant was
directly involved and drugs that can be attributed to the defendant
in a conspiracy as part of his relevant conduct.” Id. The district
court did not clearly err in finding that Lopez was responsible for
the drugs carried by the other couriers because he was engaged with
them in a jointly undertaken criminal activity. See id.
Because Lopez did not carry his burden under U.S.S.G.
§ 3B1.2(b) of showing that he was substantially less culpable than
the average participant, the district court did not clearly err in
refusing to adjust Lopez’s offense level because of his role in the
offense. See United States v. Brown, 54 F.3d 234, 240–41 & n.7
(5th Cir. 1995).
Lopez contends that 28 U.S.C. § 841(a) & (b) is
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Lopez acknowledges that this issue is foreclosed by United
States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000). He raises
the issue to preserve it for possible further review.
AFFIRMED.
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