United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2005
Charles R. Fulbruge III
Clerk
No. 04-50911
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IGANCIO DEL ANGEL-BALDERAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-1036-All-PRM
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Ignacio Del Angel-Balderas was charged in a two-count
indictment with possession with intent to distribute 100
kilograms or more of marijuana and possession with intent to
distribute five kilograms or more of cocaine. Del Angel-Balderas
pled guilty to both counts without the benefit of a plea
agreement. He appeals his sentence.
For the first time on appeal, Del Angel-Balderas contends
that the enhancement of his sentence based on prior convictions
*
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this opinion should not be published and is not precedent except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. 04-50911
-2-
which he did not admit and that were not alleged in the
indictment is unconstitutional in light of Blakely v. Washington,
124 S. Ct. 2531 (2004). As Del Angel-Balderas did not raise a
claim under Blakely or United States v. Booker, 125 S. Ct. 738
(2005) below, this court’s review is for plain error. See United
States v. Mares, 402 F.3d 511, 520 (5th Cir.), petition for cert.
filed, No. 04-9517 (U.S. Mar. 31, 2005).
Del Angel-Balderas’ sentence was enhanced based on his prior
convictions. Booker reaffirmed the holding in Apprendi that
prior convictions are excluded from the facts that must be
admitted or proven to the jury. See Booker, 125 S. Ct. at 756.
Thus, Del Angel-Balderas’ sentence was not affected by a Booker
error or a Sixth Amendment violation. See Booker, 125 S. Ct. at
750, 769. As such, the district court committed no error, plain
or otherwise, by enhancing Del Angel-Balderas’ sentence based on
his prior convictions.
Del Angel-Balderas next contends that the district court
erroneously denied his request for a minor-role reduction as an
abuse of discretion that adversely affected his base offense
level and states that, as a mere courier or “mule” in the
offense, he was less culpable than the other participants in the
drug trafficking scheme.
Del Angel-Balderas was convicted and sentenced based on his
possession of the drugs that were found in his tractor trailer.
Thus, he is not due a minor-role adjustment. Moreover, his
No. 04-50911
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transportation of 322.05 kilograms of marijuana and 89.58
kilograms of cocaine provided an indispensable service to the
others involved in the drug-trafficking scheme and was essential
to their success. As such, Del Angel-Balderas has not shown that
he was substantially less culpable than the average participant.
See United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995);
Garcia, 242 F.3d 593 at 597. Accordingly, the district court did
not clearly err in determining that Del Angel-Balderas was not
entitled to a minor-role downward adjustment. See United States
v. Villanueva, __F.3d__, No. 03-20812, 2005 WL 958221 at *8 & n.9
(5th Cir. Apr. 27, 2005).
AFFIRMED.