                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         October 30, 2003
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 03-40020
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ARMANDO GUTIERREZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. L-02-CR-914-1
                      --------------------

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

PER CURIAM:*

     Armando Gutierrez appeals following his guilty-plea

conviction for conspiracy to possess with intent to distribute

in excess of 100 kilograms of marijuana, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846.     Gutierrez raises

numerous sentencing errors on appeal.   We affirm.

     Gutierrez argues that the district court erroneously

held him responsible under relevant conduct for the amount of


     *
        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that this opinion should not be published and is not precedent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. 03-40020
                                 -2-

marijuana found in his co-defendant's truck.   At the sentencing

hearing, the district court found the testimony of both Gutierrez

and his co-defendant to be incredible, and we find no clear error

in the court's relevant conduct determination.    See United States

v. Alford, 142 F.3d 825, 831-32 (5th Cir. 1998); United States

v. Sotelo, 97 F.3d 782, 799 (5th Cir. 1996)(credibility

determinations are within the province of the trier-of-fact);

U.S.S.G. § 1B1.3.   We also find no error in the district court's

denial of adjustments for acceptance of responsibility, see

United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir. 1999),

U.S.S.G. § 3E1.1; safety valve, see United States v. Edwards,

65 F.3d 430, 433 (5th Cir. 1995), U.S.S.G. § 5C1.2; and

mitigating role.    See Edwards, 65 F.3d at 433-34; United States

v. Buenrostro, 868 F.2d 135, 137-38 (5th Cir. 1989); U.S.S.G.

§ 3B1.2.

     Gutierrez also argues that the Government breached the

plea agreement by failing to move for a reduction based on his

acceptance of responsibility.   Because Gutierrez did not raise

this argument in the district court, review is for plain error.

See United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001).

Even assuming, arguendo, the existence of error, Gutierrez has

not demonstrated that any error affected his substantial rights.

See United States v. Olano, 507 U.S. 725, 732 (1993); Reeves, 255

F.3d at 210.
                            No. 03-40020
                                 -3-

     Finally, Gutierrez argues that 21 U.S.C. § 841 is

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

(2000), because the statute treats drug type and quantity as

sentencing factors.   He acknowledges that his argument is

foreclosed by circuit precedent but wishes to preserve the issue

for Supreme Court review.   Gutierrez's argument is foreclosed.

See United States v. Slaughter, 238 F.3d 580, 582 (5th Cir.

2000).

     AFFIRMED.
