United States v. Cazares-Ramirez ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40835
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO HUMBERTO CAZARES-RAMIREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-132-1
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April 22, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Mario Humberto Cazares-Ramirez appeals from his conviction of
importing approximately 47 kilograms of cocaine. Cazares contends,
for the first time on appeal, that there was an inadequate factual
basis for his guilty plea pursuant to FED. R. CRIM. P. 11(f) because
the factual basis did not establish that he knew the substance he
imported was cocaine or how much cocaine he carried. He argues
that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires the
factual basis to establish that a drug-importation defendant knew
the type and quantity of the drug involved in his offense.
*
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that this opinion should not be published and is not precedent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. 01-40835
-2-
The factual basis for a guilty plea in a drug-importation case
need not establish that the defendant knew the precise quantity or
type of the drug he imported. United States v. Valencia-Gonzales,
172 F.3d 344, 345-46 (5th Cir. 1999). Apprendi has not affected
this court’s pre-Apprendi jurisprudence on that issue. See United
States v. Enriquez, No. 00-51086, slip op. at 2 (5th Cir. Oct. 4,
2001) (unpublished; copy attached); see also United States v.
Carrera, 259 F.3d 818, 830 (7th Cir. 2001); United States v.
Sheppard, 219 F.3d 766, 768 n.1 (8th Cir. 2000). Cazares cannot
demonstrate error, plain or otherwise. See United States v. Vonn,
___U.S.___ (U.S. Mar. 4, 2002), 2002 WL 331733, *5.
Cazares contends, again for the first time on appeal, that the
federal drug-importation statutes are facially unconstitutional
pursuant to Apprendi. He concedes that his contention is
foreclosed by the jurisprudence of this court, but he seeks to
preserve the issue for Supreme Court review. Apprendi did not
render the federal drug statutes unconstitutional. United States
v. Slaughter, 238 F.3d 580, 581 (5th Cir.), cert. denied, 532 U.S.
1045 (2001). Cazares cannot demonstrate error, plain or otherwise.
See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994)(en banc).
AFFIRMED.