United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 13, 2004
Charles R. Fulbruge III
Clerk
No. 03-20940
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JOSE CASTRO, also known as Ray Sanchez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CR-575-2
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Jose Castro appeals his conviction and sentence
following his guilty plea to conspiracy to possess with intent to
distribute more than five kilograms of cocaine. Relying on
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v.
Washington, 124 S. Ct. 2531 (2004), Castro argues that his guilty
plea, which included a waiver-of-appeal provision, was
involuntary because the district court did not inform him of the
drug quantity on which he would be sentenced.
*
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this opinion should not be published and is not precedent except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. 03-20940
-2-
Castro was rearraigned before Blakely was decided. Further,
this court has determined that Blakely does not apply to the
Guidelines. See United States v. Pineiro, 377 F.3d 464, 465-66
(5th Cir. 2004), pet. for cert. filed (U.S. July 14, 2004)(No.
04-5263). Moreover, because Castro was not sentenced above the
statutory maximum, his reliance on Apprendi is misplaced. See
United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000).
Thus, the district court was under no duty under Rule 11 to
advise Castro that he had a right to a jury trial on the amount
of intended loss or his role in the offense inasmuch as those
were factors that increased his sentence under the Guidelines.
See Pineiro, 377 F.3d at 465-66. As such, Castro fails to show
that the district court’s acceptance of his guilty plea was
error. See United States v. Vonn, 535 U.S. 55, 59 (2002); United
States v. Olano, 507 U.S. 725, 732-35 (1997); United States v.
Vasquez, 216 F.3d 456, 459 (5th Cir. 2000). Nor does Castro show
that his substantial rights were affected inasmuch as the same
base offense level applies to 6.05 kilograms of cocaine as to 5
kilograms. See Olano, 507 U.S. at 732-35; Vasquez, 216 F.3d at
459; U.S.S.G. § 2D1.1(c)(4).
Castro has shown no defect in his indictment on the basis
that it did not charge the drug quantity on which his sentence
was based as an element of his offense. See Pineiro, 377 F.3d at
465-66.
AFFIRMED.
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