United States v. Marquez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 22, 2003

Charles R. Fulbruge III Clerk No. 02-40753 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO MARQUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-02-CR-65-1 --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Eduardo Marquez (“Marquez”) pled guilty to possession of

cocaine with intent to distribute in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B). He argues that the district court

plainly erred by assigning an initial offense level of 28 for

possession of 1.2 kilograms of cocaine and that the drug type and

quantity provisions of § 841(a) and (b) are unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466 (2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40753 -2-

Though the district court may have failed to properly select

the initial offense level, this court’s rule for correcting

sentencing range errors is clear: even where clear error exists,

the error will not be corrected as plain error if the original

sentence could be imposed on remand. United States v. Leonard,

157 F.3d 343, 346 (5th Cir. 1998). As Marquez concedes, his

second argument is foreclosed by United States v. Slaughter, 238

F.3d 580, 582 (5th Cir. 2000), cert. denied, 532 U.S. 1045

(2001). In the absence of any convincing argument, the sentence

imposed by the district court is AFFIRMED.