                                                       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.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. H-02-CR-704-1
                       --------------------

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that this opinion should not be published and is not precedent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.
