                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 22, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-40753
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

EDUARDO MARQUEZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. M-02-CR-65-1
                       --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Eduardo Marquez (“Marquez”) pled guilty to possession of

cocaine with intent to distribute in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B).   He argues that the district court

plainly erred by assigning an initial offense level of 28 for

possession of 1.2 kilograms of cocaine and that the drug type and

quantity provisions of § 841(a) and (b) are unconstitutional

under Apprendi v. New Jersey, 530 U.S. 466 (2000).



     *
        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that this opinion should not be published and is not precedent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. 02-40753
                                -2-

     Though the district court may have failed to properly select

the initial offense level, this court’s rule for correcting

sentencing range errors is clear:    even where clear error exists,

the error will not be corrected as plain error if the original

sentence could be imposed on remand.     United States v. Leonard,

157 F.3d 343, 346 (5th Cir. 1998).     As Marquez concedes, his

second argument is foreclosed by United States v. Slaughter, 238

F.3d 580, 582 (5th Cir. 2000), cert. denied, 532 U.S. 1045

(2001).   In the absence of any convincing argument, the sentence

imposed by the district court is AFFIRMED.
