United States v. Gutierrez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 30, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40020
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO GUTIERREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-914-1
--------------------
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Armando Gutierrez appeals following his guilty-plea
conviction for conspiracy to possess with intent to distribute
in excess of 100 kilograms of marijuana, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. Gutierrez raises
numerous sentencing errors on appeal. We affirm.
Gutierrez argues that the district court erroneously
held him responsible under relevant conduct for the amount of
*
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that this opinion should not be published and is not precedent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. 03-40020
-2-
marijuana found in his co-defendant's truck. At the sentencing
hearing, the district court found the testimony of both Gutierrez
and his co-defendant to be incredible, and we find no clear error
in the court's relevant conduct determination. See United States
v. Alford, 142 F.3d 825, 831-32 (5th Cir. 1998); United States
v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996)(credibility
determinations are within the province of the trier-of-fact);
U.S.S.G. § 1B1.3. We also find no error in the district court's
denial of adjustments for acceptance of responsibility, see
United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir. 1999),
U.S.S.G. § 3E1.1; safety valve, see United States v. Edwards,
65 F.3d 430, 433 (5th Cir. 1995), U.S.S.G. § 5C1.2; and
mitigating role. See Edwards, 65 F.3d at 433-34; United States
v. Buenrostro, 868 F.2d 135, 137-38 (5th Cir. 1989); U.S.S.G.
§ 3B1.2.
Gutierrez also argues that the Government breached the
plea agreement by failing to move for a reduction based on his
acceptance of responsibility. Because Gutierrez did not raise
this argument in the district court, review is for plain error.
See United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001).
Even assuming, arguendo, the existence of error, Gutierrez has
not demonstrated that any error affected his substantial rights.
See United States v. Olano, 507 U.S. 725, 732 (1993); Reeves, 255
F.3d at 210.
No. 03-40020
-3-
Finally, Gutierrez argues that 21 U.S.C. § 841 is
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000), because the statute treats drug type and quantity as
sentencing factors. He acknowledges that his argument is
foreclosed by circuit precedent but wishes to preserve the issue
for Supreme Court review. Gutierrez's argument is foreclosed.
See United States v. Slaughter, 238 F.3d 580, 582 (5th Cir.
2000).
AFFIRMED.