                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                            No. 01-20977



                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,


                               VERSUS


            VICTOR HUGO CASTRO, also known as Torvic,
                       also known as Torby,

                                                Defendant-Appellant.




          Appeal from the United States District Court
               For the Southern District of Texas
                           (H-00-CR-30-2)
                          September 5, 2002


Before DeMOSS, STEWART, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:*

     The Appellant, Victor Hugo Castro (“Castro”), was charged in

an indictment with six counts of aiding and abetting with intent to

distribute a controlled substance and one count of conspiracy to

possess with intent to distribute a controlled substance.        On



     *
      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this opinion should not be published and is not precedent except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.
September    18,    2000,   Castro   entered     a   plea   of    guilty    to   the

conspiracy count.         The government then dismissed the remaining

counts.     Castro was sentenced to a term of imprisonment of 189

months on June 22, 2001.         Castro now appeals this sentence.

                                  BACKGROUND

     Between       June   and   September   of   1998,      the    United   States

conducted court authorized wire interception on Jorge Castro’s

pager, home telephone and cellular phone.2            These interceptions led

to the surveillance of several other individuals who were later

indicted for conspiracy and other drug charges.                  Among those that

were under surveillance was the Appellant, Castro.                      The wire

interceptions and surveillance revealed that Castro was involved in

cocaine and crack cocaine trafficking, and the government alleges

that these also revealed that Castro was a manager of the drug

trafficking activities.

     Castro was charged, along with Jorge Eliecer Castro, Jhoymar

Angulo-Castro, Nurya Jamileth Estrada, Absalon Murillo-Gamboa and

Javier Martinez Sanchez, by indictment on January 19, 2000, in the

United States Court for the Southern District of Texas, with

conspiracy to possess with intent to distribute five kilograms or

more of a mixture or substance containing cocaine and 50 grams or

more of a mixture or substance containing cocaine base or crack

cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 21


     2
      Jorge Castro is the Appellant’s brother.

                                       2
U.S.C. § 846 (count 1), and six counts of aiding and abetting with

intent to distribute a controlled substance in violation of 21

U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B) and (b)(1)(C) and 18

U.S.C. § 2 (counts 3-8).     Castro entered a plea of guilty to count

one of the indictment and was sentenced to 189 months confinement

and to a five-year term of supervised release.        The district court

also ordered Castro to pay a $100 special assessment and a $5,000

fine.   The remaining counts were dismissed on a motion by the

government.    Castro now appeals claiming that the district court

erred in not considering his status as an illegal alien when

sentencing    him,   that   it   erred   in   assessing   a   three   level

enhancement due to his role as a manager and that it erred in

holding him accountable for 231 grams of crack cocaine in light of

Apprendi.

                                 DISCUSSION

The timeliness of Castro’s appeal.

     The district court sentenced Castro on June 22, 2001, and

entered judgment on July 5, 2001.        Apparently, the notice of entry

of judgment was inadvertently sent to the wrong attorney and

Castro’s attorney was not notified of the mistake until July 31,

2001, at which time Castro’s counsel filed a Motion for Extension

of Time to File Notice of Appeal.        The district court ruled on his

motion on September 20, 2001, and granted Castro until October 1,




                                     3
2001, to file his Notice of Appeal.     Castro’s Notice of Appeal was

then filed on September 24, 2001.

     Under Fed. R. App. P. 3(a), “[a]n appeal permitted by law as

of right from a district court to a court of appeals may be taken

only by filing a notice of appeal with the clerk of the district

court within the time allowed by Rule 4.”       “Rule 3's dictates are

jurisdictional in nature, and their satisfaction is a prerequisite

to appellate review.”   Smith v. Barry, 502 U.S. 244, 248 (1992).

According to Rule 4(b), a notice of appeal in a criminal case must

be filed in the district court within 10 days of entry of the

judgment.    Fed. R. App. P. 4(b).     However, “[u]pon a finding of

excusable neglect or good cause, the district court may - before or

after the time has expired, with or without motion and notice -

extend the time to file a notice of appeal for a period not to

exceed 30 days from the expiration of the time otherwise prescribed

by this Rule (4)(b).”   Fed. R. App. P. 4(b)(4) (emphasis added).

     Though the district court could extend the time to file, this

would still limit the time to file to the ten-plus-thirty days

provided for in Fed. R. App. P. 4(b) and September 24 was beyond

that time range.   However, “[i]f a document filed within the time

specified by Rule 4 gives the notice required by Rule 3, it is

effective as a notice of appeal.”     Smith, 502 U.S. at 248-49.      The

Motion for Extension of Time to File was filed on July 31, 2001,

within the   ten-plus-thirty   day    time   limit.   The   motion   also


                                  4
identified the parties taking the appeal, the judgment being

appealed from and that it was appealing the matter to the court of

appeals.       It therefore can act as the functional equivalent of a

Notice of Appeal.        See Andrade v. California, 270 F.3d 743, 751-52

(9th    Cir.     2001)   (noting   that   such   motions   are   functional

equivalents when the motion identifies the parties taking the

appeal, the judgment or order being appealed from and the court to

which the appeal is taken); Dillon v. United States, 184 F.3d 556,

557 (6th Cir. 1999) (“[W]here only one avenue of appeal exists,

Rule 3(c)(1)(C) is satisfied even if the notice of appeal does not

name the appellate court.”).

Castro’s Motion for Downward Departure based on his alien status

       Castro contends that the district court abused its discretion

in denying his motion for departure based on his deportable alien

status.    Prior to sentencing, Castro objected to the presentence

report on the ground that it failed to state that he was a

deportable alien who would do 100 percent of his sentence as

opposed to the usual 85 percent for inmates who are U.S. citizens.

At sentencing, defense counsel did not expand on his motion, and

the district court found that the mere fact that Castro was a

deportable alien did not place his case outside the heartland of

the guidelines.

       This Court has jurisdiction to review a defendant’s challenge

to a sentence “only if it was imposed in violation of law; was


                                      5
imposed   as   a   result    of    a   misapplication    of   the   sentencing

guidelines; was the result of an upward departure; or was imposed

for an offense for which there is no sentencing guideline and is

plainly unreasonable.        United States v. DiMarco, 46 F.3d 476, 477

(5th Cir. 1995) (citing 18 U.S.C. § 3742(a)).            “The imposition of

a lawful sentence coupled with the decision not to depart from the

guidelines provides no ground for relief.”               Id. (citing United

States v. Miro, 29 F.3d 194, 198-99 (5th Cir. 1994).                However, a

district court’s refusal to depart from the guidelines can be

reviewed by this Court only if the district court based its

decision upon an erroneous belief that it lacked the authority to

depart. United States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th

Cir. 1999); DiMarco, 46 F.3d at 478 (noting that other circuits

have held that “appellate review is available for claims that the

district court erroneously believed that it lacked authority to

depart from the sentencing guideline range”); United States v.

Wilson, 249 F.3d 366, 380 (5th Cir. 2001).           The burden of proving

a misapplication of the Guidelines is on the party challenging the

sentence on appeal.         United States v. Corley, 978 F.2d 185, 186

(5th Cir. 1992).

       Castro argues that the district court erred because it failed

to take into consideration the Supreme Court’s decision in United

States v. Koon, 518 U.S. 81 (1996), which held that district courts

have   broad   discretion     to   depart   from   the   Guidelines    when   a

                                        6
particular case is outside the “heartland” of Guideline cases.

Under the standard articulated above, however, we can only review

the district court’s decision if it was made under the mistaken

belief     that    it   could   not     consider       his   deportable   status.

Therefore, in order to review the decision, “something in the

record must indicate that the district court held such an erroneous

belief.”    United States v. Landerman, 167 F.3d 895, 899 (5th Cir.

1999).     “[A] district court’s summary denial without explanation

does not indicate any such erroneous belief.”                 Valencia-Gonzales,

172 F.3d at 346 (citing United States v. Aggarwal, 17 F.3d 737, 745

(5th Cir. 1994)).       Nothing asserted by Castro leads us to believe

that the district court was ignorant of the Koon decision or felt

constrained from considering his deportable status.                  Quite to the

contrary, the district court stated, with regard to the motion for

downward departure, that “[i]t’s not out of the heartland, and I’m

going to deny your motion for a downward departure.”                 As Castro has

failed to demonstrate that the district court was operating under

an erroneous understanding of the law when it denied his motion,

his argument fails.

The district court’s finding that Castro was a manager

     Castro       contends   that     the       district   court   misapplied   the

Guidelines when it increased his offense level under U.S.S.G.

§ 3B1.1(b).       He bases this allegation on the fact that the district

court did not issue specific findings that he exercised some degree


                                            7
of control over at least four other participants.             Castro also

contends that, in light of Apprendi v. New Jersey, 530 U.S. 466

(2000), this issue should have been submitted to a jury.

       Under U.S.S.G. § 3B1.1(b), a three level increase is permitted

“[i]f the defendant was a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five or

more     participants   or    was   otherwise   extensive.”      U.S.S.G.

§ 3B1.1(b).     “Proof that the defendant supervised only one other

culpable participant is sufficient to make the defendant eligible

for the enhancement.”        United States v. Cooper, 274 F.3d 230, 247

(5th Cir. 2001).    Also, in calculating the number of participants,

the defendant may be included among the five.          United States v.

Wilder, 15 F.3d 1292, 1299 (5th Cir. 1994).       In determining whether

a defendant is a leader, a court should consider the following

factors: “the exercise of decision making authority, the nature of

participation in the commission of the offense, the recruitment of

accomplices, the claimed right to a larger share of the fruits of

the crime, the degree of participation in planning or organizing

the offense, the nature and scope of the illegal activity, and the

degree of control and authority exercised over others.”          U.S.S.G.

§ 3B1.1, comment. (n.4).         We review such a factual finding for

clear error.    United States v. Thomas, 120 F.3d 564, 574 (5th Cir.

1997).




                                     8
     At sentencing, the prosecutor introduced portions of recorded

conversations between Castro and Absalon Murillo-Gamboa which could

reasonably be construed as implicating Castro as a manager.       Other

intercepted   wire   communications   involving   Castro   were   also

presented.    After hearing arguments and reviewing the evidence

presented, the district court found that the preponderance of the

credible evidence supported the three point enhancement.           The

district court also later adopted the presentence report’s findings

of facts and application of the Guidelines to the facts.           The

presentence report’s summary of Castro’s role in the offense

states:

          Victor Castro is the brother of Jorge Castro and
          was   a  manager    in   this  cocaine    trafficking
          organization.    When Jorge Castro was out of the
          county in July/August, 1998, Victor Castro was in
          charge of the operation. He recruited Hans Fajardo
          and Jhoymer Angulo-Castro to participate in the
          distribution   of    narcotics.      Victor    Castro
          participated    and    coordinated    several    drug
          transaction [sic] including those occurring on July
          10, 1998; August 11, 1998; September 1, 8, 11,
          1998; and February 10, 1999. According to the DEA
          agent, Victor Castro had a separate source of
          supply for the cocaine base.            He is held
          accountable for 4.75 kilograms of cocaine powder
          and 231 grams of cocaine base. As the manager he
          should receive a three-level upward adjustment for
          his role in the offense.

“Ordinarily, a PSR [presentence report] bears sufficient indicia of

reliability to be considered as evidence by the sentencing judge

when making factual determinations.”      Cooper, 274 F.3d at 239

(citing United States v. Narviz-Guerra, 148 F.3d 530, 537 (5th Cir.


                                 9
1998)).    “The district court may adopt the facts contained in the

PSR   without      further   inquiry       if   the    facts    have   an    adequate

evidentiary basis and the defendant does not present rebuttal

evidence.”       Id. (citing United States v. Alford, 142 F.3d 825, 832

(5th Cir. 1998)).          In the present case, it is clear that the

district court not only considered the evidence as to whether the

adjustment was justified, but also permissibly relied upon the

presentence report for its findings of fact.                   As such, Castro has

failed to demonstrate how the district court’s decision was clearly

erroneous.

      As   for    Castro’s    claim    that     this   issue    should      have   been

presented to a jury, this Court has held that “error under Apprendi

requires reversal only if a defendant’s sentence exceeds the

statutory maximum.”          Cooper, 274 F.3d at 243; United States v.

Keith, 230 F.3d 784, 787 (5th Cir. 2000); United States v. Doggett,

230 F.3d 160, 165 (5th Cir. 2000) (stating that even if a drug

amount is not alleged in the indictment, Apprendi does not apply

where the sentence is less than the statutory maximum provided by

21 U.S.C. § 841(b)(1)(C)).            The count to which Castro entered a

plea of guilty alleged that he conspired to possess with intent to

distribute       five   kilograms     or   more   of   a   mixture     or   substance

containing cocaine and 50 grams or more of a mixture or substance

containing cocaine base in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A) and 846.          This offense has a statutory punishment


                                           10
range     of   10   years     to   life    imprisonment.           See    21   U.S.C.

§841(b)(1)(A).      Castro’s sentence of 189 months falls within this

statutory range, therefore, Apprendi does not apply.

The district court’s finding that Castro was accountable for 231

grams of crack cocaine

      Relying on Apprendi, Castro contends that the district court

erred in holding him accountable for 231 grams of cocaine base

without    having    submitted     the    underlying       facts   supporting      the

Guideline adjustment to a jury.                 As explained above, Castro’s

sentence fell within the statutory range set forth for the crime to

which he entered a guilty plea.                  Therefore, Apprendi does not

apply.    Castro also contends, citing United States v. Crockett, 82

F.3d 722 (7th Cir. 1996)), that the mere fact that he engaged in

other drug transactions is not sufficient to justify treating those

transactions as “relevant conduct” for sentencing purposes.

      Castro’s argument is misplaced.             Crockett expressed a concern

over whether or not there was a specific finding that the other

drug transactions were part of a common scheme or plan involving

the charged offense.           Id. at 730.             In the present case, the

presentence report clearly states that Castro was accountable for

“4.75 kilograms of cocaine powder and 231 grams of cocaine base.”

As   stated    above,   the    district        court    permissibly      adopted   the

presentence report’s findings and Castro has failed to show any

evidence that would rebut this finding.


                                          11
                                   CONCLUSION

        Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the district court did not err in refusing to

grant Castro a downward departure in his sentence or in enhancing

his sentence.          We therefore AFFIRM the district court’s sentence.

                       AFFIRMED.




g:\opin\01-20977.opn                   12
