United States v. Ramos

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41030 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS RAMOS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (L-01-CR-451-ALL) -------------------- June 14, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jose Luis Ramos appeals his sentence,

which was assessed after he was convicted of possession with intent

to distribute in excess of five kilograms of cocaine. Ramos

contends that the district court erred in denying him an offense

level reduction pursuant to United States Sentencing Guidelines

(U.S.S.G.) § 3B1.2 for his role in the offense. He argues that the

district court applied its de facto policy of refusing the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. reduction to drug couriers, and that, in ruling on the reduction,

the court failed to consider the Sentencing Commission’s 2001

amendment to the commentary to U.S.S.G. § 3B1.2.

We review for clear error the sentencing court’s determination

that a defendant did not play a minor role in an offense. United4

States v. Zuniga, 18 F.3d 1254, 1261 (5th Cir. 1994). Here, the

district court found that Ramos played an important role in the

distribution of the cocaine when he attempted to transport a large

quantity of the drug through the border patrol checkpoint. These

factual findings, which were specific to Ramos’s offense, are not

clearly erroneous under either the 2000 or 2001 commentary to

U.S.S.G. § 3B1.2. See United States v. Marmolejo, 106 F.3d 1213,

1217 (5th Cir. 1997); U.S.S.G. Suppl. to App. C amend. 635; United

States v. Rodriquez De Varon, 175 F.3d 930, 940-44 (11th Cir.

1999).

Ramos also asserts that 21 U.S.C. § 841 is facially

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). As Ramos concedes, however, his argument is foreclosed by

circuit precedent. See United States v. Slaughter, 238 F.3d 580,

582 (5th Cir. 2000), cert. denied., 532 U.S. 1045 (2001). For the

foregoing reasons, the sentence imposed by the district court is

AFFIRMED.