United States v. Valadez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40604 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER GUMERSINDO VALADEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-01-CR-68-1 -------------------- August 21, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

Javier Gumersindo Valadez appeals his conviction and

sentence following his guilty plea to possession with the intent

to distribute marijuana. He argues that the district court

clearly erred in refusing to adjust his sentence pursuant to

U.S.S.G. § 3B1.2 for his self-described mitigating role in the

offense and that 21 U.S.C. § 841(a)&(b) is facially

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40604 -2-

unconstitutional in light of Apprendi v. New Jersey, 520 U.S. 466

(2000).

We hold that the district court was not under the false

impression that the other offense participant had to be “before

the court” in a literal sense for the adjustment to apply;

instead, its decision was based on the lack of facts to

corroborate Valadez’s assertion that he played a minor or minimal

role in the offense and a refusal to accept his bare assertion at

face value. See U.S.S.G. § 3B1.2 comment. (backg’d.) (2000)

(determination whether to apply adjustment involves a

determination that is “heavily dependent” on the facts of the

case).

Valadez concedes that his argument that 21 U.S.C.

§ 841(a)&(b) is facially unconstitutional is foreclosed by United

States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert.

denied, 532 U.S. 1045 (2001), and he raises it solely to preserve

the issue for further review. This court is bound by its

precedent absent an intervening Supreme Court decision or a

subsequent en banc decision; therefore, the issue regarding 21

U.S.C. § 841 is indeed foreclosed. See United States v. Short,

181 F.3d 620, 624 (5th Cir. 1999).

AFFIRMED.