United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-20415
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BARAKUMO GOODLUCK LOYA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-508-ALL
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Before Barksdale, Stewart, and Clement, Circuit Judges.
PER CURIAM:*
Barakumo Goodluck Loya (Loya) appeals his sentence following
his guilty-plea convictions for possession with intent to
distribute more than 100 grams of heroin and importation of more
than 100 grams of heroin. Loya was sentenced to 87 months of
imprisonment and five years of supervised release.
Loya’s offense occurred prior to the decision in United
States v. Booker, 543 U.S. 220 (2005), but he was sentenced after
Booker was decided. Loya argues that, although he is entitled to
*
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this opinion should not be published and is not precedent except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. 05-20415
-2-
retroactive application of Booker’s Sixth Amendment holding, the
remedial portion of Booker’s holding, which made the Sentencing
Guidelines advisory, may not be applied in his case without
violating the Due Process and Ex Post Facto Clauses of the
Constitution. This question is foreclosed. See United States v.
Austin, 432 F.3d 598, 599-600 (5th Cir. 2005); United States v.
Scroggins, 411 F.3d 572, 575-76 (5th Cir. 2005).
Loya also argues that the district court erred by denying
him a minor role adjustment pursuant to U.S.S.G. § 3B1.2.
Following Booker, this court reviews the district court’s
application of the Sentencing Guidelines de novo and reviews
factual findings for clear error. See United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005); United States v. Villanueva,
408 F.3d 193, 203 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268
(2005). Although Loya asserts that he merely served as the
courier for the heroin, the record reveals that Loya met with
several others involved in the smuggling operation, that he was
able to persuade the others to change certain details of the
operation (such as the length of time he would be in Nigeria and
the airport from which he would depart), that he was to be paid a
substantial sum for transporting a large quantity (one kilogram)
of heroin, and that his role as courier was indispensable to the
overall operation. Based on these facts, we conclude that the
district court did not clearly err in denying a mitigating role
adjustment.
No. 05-20415
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Loya argues that 21 U.S.C. §§ 841 and 960 were rendered
facially unconstitutional by Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). He concedes that this argument is foreclosed by
our opinion in United States v. Slaughter, 238 F.3d 580, 581-82
(5th Cir. 2000), which rejected a broad Apprendi-based attack on
the constitutionality of 21 U.S.C. § 841. He raises these issues
only to preserve them for Supreme Court review.
Loya has also filed a pro se motion to relieve the Federal
Public Defender and to appoint new counsel on appeal. This
motion is DENIED.
AFFIRMED; MOTION FOR APPOINTMENT OF NEW COUNSEL DENIED.