United States v. Flores

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 28, 2004
Charles R. Fulbruge III
Clerk
No. 03-41226
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO ZARCO FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-03-CR-73-1
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Pedro Zarco Flores (“Flores”) appeals his guilty-plea
conviction and sentence for possession of more than five
kilograms of cocaine with intent to distribute, a violation of
21 U.S.C. § 841(a)(1) and (b)(1).
Flores contends that the district court clearly erred in
denying him a “safety valve” departure under U.S.S.G. § 5C1.2.
Although the basic outline of Flores’s story of how he obtained
the truck that was used to deliver 5.58 kilograms of marijuana
*
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this opinion should not be published and is not precedent except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. 03-41226
-2-
appears believable, his answers to some of the district court’s
specific questions about this matter suggests that he was
not being entirely forthcoming about his role in the offense.
After reviewing the record, we conclude that the district court
did not clearly err in determining that Flores’s testimony about
his role in the offense was not fully credible or “truthful.”
See U.S.S.G. § 5C1.2(a)(5) (Nov. 2002); United States v.
Ridgeway, 321 F.3d 512, 516 (5th Cir. 2003).
For the first time on appeal, Flores maintains that the
sentencing scheme of 21 U.S.C. § 841 is facially unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
As Flores concedes, his argument is foreclosed by this court’s
decision in United States v. Slaughter, 238 F.3d 580, 582
(5th Cir. 2000). Flores raises the issue only to preserve it for
possible further review.
The judgment of the district court is AFFIRMED.