                                                                                         United States Court of Appeals
                                                                                                  Fifth Circuit
                                                                                                F I L E D
                                                                                                March 23, 2004
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                            Charles R. Fulbruge III
                                    FOR THE FIFTH CIRCUIT                                           Clerk
                                       ____________________

                                           No. 03-41170
                                         Summary Calendar
                                       ____________________


UNITED STATES OF AMERICA,

                                                                                           Plaintiff-Appellee,

                                                  versus

MARIA ORALIA LOZANO-TAMEZ,

                                                                                         Defendant-
                                                           Appellant.

                       ---------------------------------------------------------------
                            Appeal from the United States District Court
                                   for the Southern District of Texas
                                      USDC No. M-03-CR-277-1
                       --------------------------------------------------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judge.

PER CURIAM:*

       Maria Oralia Lozano-Tamez (Tamez) pleaded guilty to one count of possession with intent

to distribute more than 100 grams of black tar heroin in violation of 18 U.S.C. §§ 2, 841(a)(1),

(b)(1)(B). She argues that the district court erred when it denied a mitigating role reduction and that

21 U.S.C. §§ 841, 952 and 960 are facially unconstitutional in light of Apprendi v. New Jersey, 530



       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
U.S. 466 (2000). Tamez concedes that her second argument is foreclosed but nevertheless raises the

issue to preserve it for possible further review.

       Contrary to her argument on appeal, Tamez’s role in the offense was more than that of a mere

courier. Tamez packaged and transported the heroin from Mexico, met with the confidential source

once before another meeting with the confidential source and the undercover prospective buyer,

stayed overnight with the drugs, and informed the undercover agent that she could deliver additional

amounts of heroin. Considering her role in the offense, it cannot be said that Tamez was “peripheral

to the advancement” of the illicit heroin activity. See United States v. Miranda, 248 F.3d 434, 446-47

(5th Cir. 2001). The district court did not clearly err in determining that Tamez was not entitled to

a minor role reduction pursuant to U.S.S.G. § 3B1.2(b). See United States v. Zuniga, 18 F.3d 1254,

1261 (5th Cir. 1994).

       Tamez’s argument regarding the constitutionality of the statutes of conviction is foreclosed

by this court’s decision in United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).

The judgment of the district court is therefore AFFIRMED.




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