United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2007
Charles R. Fulbruge III
Clerk
No. 06-40297
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL CASTILLO-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-178-4
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Daniel Castillo-Martinez appeals his guilty plea convictions
and 210-month sentences for conspiracy to possess with intent to
distribute more than five kilograms of cocaine and more than 50
grams of methamphetamine, possession with intent to distribute
more than five kilograms of cocaine, and possession with intent
to distribute more than 50 grams of methamphetamine. He argues
that the district court clearly erred in determining that he was
not entitled to a U.S.S.G. § 3B1.2(b) reduction in his offense
level for a minor role in the offense. Because Castillo-Martinez
*
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this opinion should not be published and is not precedent except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. 06-40297
-2-
twice transported a large amount of drugs from Mexico to the
United States and his role of transporting the drugs was
important to the success of the overall drug venture, he has not
shown that the district court clearly erred in determining that
he was not a minor participant under § 3B1.2. See United States
v. Franco-Torres, 869 F.2d 797, 801 (5th Cir. 1989).
Castillo-Martinez argues that in view of Apprendi v. New
Jersey, 530 U.S. 466 (2000), 21 U.S.C. § 841 is unconstitutional
on its face and as applied to his case. As he concedes, this
argument is foreclosed by United States v. Slaughter, 238 F.3d
580, 581-82 (5th Cir. 2000).
Castillo-Martinez argues, and the Government concedes, that
the judgment erroneously states that Castillo-Martinez was
convicted of aiding and abetting in the possession convictions.
Because the theory of aiding and abetting was not submitted to
the jury, the case is remanded for the limited purpose of
allowing the district court to correct the judgment by omitting
the reference to 18 U.S.C. § 2. See FED. R. CRIM. P. 36; United
States v. Eakes 783 F.2d 499, 507 (5th Cir. 1986).
AFFIRMED; REMANDED FOR LIMITED PURPOSE OF CORRECTION OF
CLERICAL ERROR IN JUDGMENT.