                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 03-40235
                           Summary Calendar



UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

versus


ANDRES MARTINEZ,

                                                Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                         (C-02-CR-252-6)
                      --------------------

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant    Andres   Martinez   pleaded   guilty      to

conspiracy to possess with intent to distribute more than 500 grams

of methamphetamine.    Martinez appeals his 168 month sentence,

arguing that the district court abused its discretion when it

denied his motion to continue the sentencing hearing so that the

government could evaluate the information that he had provided on

the morning of sentencing, and to allow him time to provide



     *
        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this opinion should not be published and is not precedent except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.
additional information in hopes of securing a motion for downward

departure pursuant to U.S.S.G. § 5K1.1.

     The government was not obligated to file a motion for downward

departure under § 5K1.1 if, in its evaluation and discretion,

Martinez had not provided substantial assistance.                   Martinez was

afforded several opportunities to cooperate with government.                     His

cooperation, however, came too late, and the government determined

that the information provided by Martinez was not useful.                    In any

event, Martinez was not prejudiced by the denial of his motion,

because,    under    Rule   35(b)    of   the    Federal   Rules    of     Criminal

Procedure, the government was permitted to file a post-sentencing

motion   for   a    reduction   in   Martinez’s      sentence      based    on   his

assistance.     FED. R. CRIM. P. 35(b).         Accordingly, Martinez has not

proven that the district court abused its discretion and that he

suffered prejudice resulting from the denial of his motion to

continue.      United States v. Peden, 891 F.2d 514, 519 (5th Cir.

1989).

     Martinez also appeals his 168 month sentence on the grounds

that the district court made insufficient findings to support the

total drug quantity attributed to him under U.S.S.G. §§ 2D1.1 and

1B1.3, and that it erred when it denied him a two-level reduction

in his base offense level under U.S.S.G. § 3B1.2 for his minor role

in the offense.

     Martinez filed written objections to the presentence report

challenging the accuracy of the drug quantity calculation and his

                                          2
role in the offense.     At the sentencing hearing, Martinez informed

the district court that he was not pursuing the written objections

to   the   presentence   report,    that   the   presentence   report   was

correctly written in all respects, and that the district court

could rely upon the presentence report in determining his sentence.

Martinez has thus waived any challenge to the accuracy of the drug

quantity calculation and his role in the offense, and his argument

is not reviewable on appeal.       See United States v. Musquiz, 45 F.3d

927, 931 (5th Cir. 1995); United States v. Olano, 507 U.S. 725, 733

(1993).

      The judgment of the district court is

AFFIRMED.




                                      3
