          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                                December 4, 2008
                                No. 08-50502
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee
v.

RUBEN ESPINOZA, JR

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 2:07-CR-262-1


Before GARWOOD, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
      Appealing the Judgment in a Criminal Case, Ruben Espinoza, Jr., raises
arguments that he concedes are foreclosed by United States v. Keith, 230 F.3d
784, 787 (5th Cir. 2000), which held that Apprendi v. New Jersey, 530 U.S. 466
(2000) does not preclude the imposition of a mandatory minimum sentence
under 21 U.S.C. § 841, provided that the sentence imposed does not exceed the
statutory maximum sentence for the offense. See also United States v. Harper,
527 F.3d 396, 411 (5th Cir.) (except in the case of substantial assistance to the


      *
      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should not be published and is not precedent except under the limited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. 08-50502

Government or compliance with the safety valve criteria, sentencing courts, post
United States v. Booker, 543 U.S. 220 (2005), lack discretion to depart below
relevant statutory minimums), cert. denied, 129 S. Ct. 212 (2008).          The
Government’s motion for summary affirmance is GRANTED, and the judgment
of the district court is AFFIRMED.




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