                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 24, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-21165
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAYMUNDO GONZALEZ ABAZAN,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. H-02-CR-204-1
                       --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Raymundo Gonzalez Abazan appeals his guilty-plea conviction

for possession with intent to distribute 500 or more grams of

cocaine.   He argues that the district court clearly erred in

finding that he was not a minor participant and in denying his

request for a reduction in his offense level under U.S.S.G.

§ 3B1.2.   In pleading guilty, Abazan admitted the facts in the

factual basis which established that he personally loaded and

transported more than 500 grams but less than five kilograms

     *
        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that this opinion should not be published and is not precedent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. 02-21165
                                -2-

of cocaine from Houston, Texas, to Dallas, Texas.    Abazan

did not meet his burden of proof to establish that he was

substantially less culpable than the average participant.     See

United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995).

     For the first time on appeal, Abazan also argues that he was

entitled to a four-level reduction in his offense level for his

minimal role in the offense and that the district court failed to

give reasons for its finding that he was an average participant.

Therefore, review is limited to plain error.     See United States

v. Leonard, 157 F.3d 343, 346 (5th Cir. 1998).    In view of the

facts that Abazan admitted when pleading guilty, Abazan has not

shown that the district court plainly erred in finding that he

was not a minimal participant.   Further, the district court’s

adoption of the Presentence Report (PSR) was sufficient as the

PSR clearly set forth the factual basis for the finding that

Abazan was not a minor participant and a review of the record

reveals sufficient facts to support the district court’s finding

that Abazan was an average participant.   See United States

v. Peters, 283 F.3d 300, 314 (5th Cir.), cert. denied, 536 U.S.

934 (2002).

     Abazan argues that 21 U.S.C. § 841 is unconstitutional in

light of the Supreme Court’s decision in Apprendi v. New Jersey,

530 U.S. 466 (2000).   He concedes that his argument regarding the

constitutionality of the statute is foreclosed by United
                           No. 02-21165
                                -3-

States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), but he

asserts that he is raising the issue to preserve it for Supreme

Court review.   This court has specifically rejected the argument

that Apprendi rendered 21 U.S.C. § 841 facially unconstitutional.

See id.   This court is bound by its precedent absent an

intervening Supreme Court decision or a subsequent en banc

decision; therefore, the issue regarding the constitutionality of

21 U.S.C. § 841 is foreclosed.   See United States v. Short, 181

F.3d 620, 624 (5th Cir. 1999).   The district court’s judgment is

AFFIRMED.
