                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 9, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-40330
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MIGUEL ANGEL MONTALVO-NUNEZ,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. B-03-CR-755-ALL
                        --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Miguel Angel Montalvo-Nunez pleaded guilty to possession

with intent to distribute approximately 96.6 kilograms of

marijuana and was sentenced to 41 months’ imprisonment and three

years’ supervised release.   Montalvo-Nunez was among a group of

persons carrying bundles of marijuana into the United States from

Mexico.   He contends that he should have been sentenced on the

basis of the marijuana he carried only.




     *
       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this opinion should not be published and is not precedent except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. 04-40330
                                -2-

     Under U.S.S.G. § 2D1.1(a)(3), the base offense level for a

defendant convicted of a drug offense is determined based on the

quantity of drugs involved.   United States v. Hernandez-Coronado,

39 F.3d 573, 574 (5th Cir. 1994).   Under U.S.S.G. § 1B1.3(a)(1),

“[t]his quantity includes both drugs with which the defendant was

directly involved and drugs that can be attributed to the

defendant in a conspiracy as part of his relevant conduct.”      Id.

The district court did not clearly err in finding that Montalvo-

Nunez was responsible for the drugs carried by the others because

he was engaged with them in a jointly undertaken criminal

activity.   Hernandez-Coronado, 39 F.3d at 574-75.

     Montalvo-Nunez contends that 28 U.S.C. § 841(a) & (b) are

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

(2000).   He acknowledges that this issue is foreclosed by United

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

raises the issue to preserve it for possible further review.

     AFFIRMED.
