United States v. Cruz-Ortega

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-20408
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALMA VIOLETA CRUZ-ORTEGA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-704-1
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Alma Violeta Cruz-Ortega appeals from her conviction of
possession with intent to distribute 100 grams or more of heroin.
She contends that the district court erred by not adjusting her
offense level for her minor role in the offense and, for the
first time on appeal, that 21 U.S.C. § 841 is facially
unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466(2000). Cruz concedes that her Apprendi contention is foreclosed
*
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that this opinion should not be published and is not precedent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. 03-20408
-2-
by the caselaw of this court, but she seeks to preserve the issue
for further review.
First, Cruz’s sentence was based on her own activity in the
offense, and the district court did not err by finding that Cruz
was a critical link in the transportation of heroin into the
United States. See United States v. Zuniga, 18 F.3d 1254, 1261
(5th Cir. 1994); U.S.S.G. § 3B1.2, comment. (n.3(A)). Second,
Apprendi did not render 21 U.S.C. § 841 facially
unconstitutional. United States v. Slaughter, 238 F.3d 580, 583
(5th Cir. 2000). Cruz has failed to demonstrate error, plain or
otherwise, regarding Apprendi. See FED. R. CRIM. P. 52(b).
AFFIRMED.