                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                  UNITED STATES COURT OF APPEALS                    December 9, 2003

                              FIFTH CIRCUIT                       Charles R. Fulbruge III
                                                                          Clerk

                             No. 03-40752
                           Summary Calendar


                    UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                    versus

                     AMBROSIO GARCIA-CAMACHO,

                                                     Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                         (C-03-CR-27-1)


Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Ambrosio Garcia-Camacho (“Garcia”) appeals his guilty-plea

conviction and sentence for possession with intent to distribute

more than 500 grams of cocaine, in violation of 21 U.S.C. §

841(a)(1) and (b)(1)(B).      Garcia claims the district court clearly

erred in refusing to grant his request for a two level reduction

for being a minor participant pursuant to U.S.S.G. § 3B1.2(b).

Garcia contends   that   he    is   eligible   for   a    minor   participant



     *
        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this opinion should not be published and is not precedent except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.
reduction because he was merely a one-time drug courier even though

he was the only defendant indicted in this case and was the only

person involved in the transportation of this cocaine.                  A district

court’s interpretation of the Guidelines is reviewed de novo; its

findings     of   fact,    for   clear   error.       E.g.,   United       States   v.

Claiborne, 132 F.3d 253, 254 (5th Cir.), cert. denied, 523 U.S.

1144 (1998).

      Although a drug courier is not precluded from qualifying as a

minor participant, see United States v. Sotelo, 97 F.3d 782, 799

(5th Cir. 1996), a defendant “may be a courier without being

substantially less culpable that the average participant”.                      United

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

quantity of cocaine being transported by Garcia supports the

district     court’s      determination       that   Garcia   was    not    a   minor

participant.        See United States v. Rojas, 868 F.2d 1409, 1409-10

(5th Cir. 1989).           And, obviously, the district court was not

required to accept Garcia’s account of his role in the drug

trafficking scheme. See United States v. Buenrostro, 868 F.2d 135,

138   (5th    Cir.     1989),    cert.    denied,      495    U.S.   923     (1990).

Accordingly, the ruling was not clearly erroneous.                   See id.

      For the first time on appeal, Garcia contends that 21 U.S.C.

§§ 841(a) and (b) are facially unconstitutional in the light of

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).                          As Garcia

concedes,     his    contention    is    foreclosed     by    United    States      v.

                                          2
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532

U.S. 1045.   He raises the issue only to preserve it for possible

further review.

                                                      AFFIRMED




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