                                                       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.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. C-03-CR-73-1
                       --------------------

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this opinion should not be published and is not precedent except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