                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                           June 22, 2005

                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                No. 04-40970
                              Summary Calendar



                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   versus

                           ROLANDO ARRIYAGA-PEREZ,

                                                       Defendant-Appellant.



            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 5:03-CR-1925-1


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

           Rolando    Arriyaga-Perez      appeals    his     conviction         and

sentence for possession with the intent to distribute in excess of

one hundred kilograms of marijuana, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B).        Arriyaga-Perez first argues that the

district court erred when it held him responsible, as “relevant

conduct,” for    marijuana transported by other individuals.

           A    district     court’s   determination    of    a     defendant’s

relevant conduct for sentencing purposes is reviewed for clear


     *
             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opinion should not be published and is not precedent except under the limited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.
error. United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001);

see also United States v. Villanueva,               F.3d      , 2005 WL 958221,

*9 n.9 (5th Cir. 2005).             The base offense level for a defendant

convicted of a drug offense is determined by the amount of drugs

involved, including the amount that can be attributed to him as

relevant conduct.          U.S.S.G. §§ 1B1.3(a)(1), 2D1.1(a)(3).         Relevant

conduct includes “all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity.”

U.S.S.G. § 1B1.3(a)(1).

           Arriyaga-Perez was recruited along with sixteen other

recruitees and taken to warehouses in Mexico where he and the

others picked up marijuana to import into the United States.                After

picking up the marijuana, Arriyaga-Perez and the others were

transported together to the Rio Grande River.                   Together, they

smuggled the marijuana across the river.              Based on the record in

this case, the district court’s decision that the facts were more

appropriately        viewed    as    showing    jointly    undertaken    criminal

activity   was       not   clearly    erroneous.      See    United   States     v.

Hernandez-Coronado, 39 F.3d 573-74 (5th Cir. 1994).

           Second, Arriyaga-Perez argues that the district court

erred when it denied his request for a two-level reduction to his

offense level based on his minor role.                This court reviews for

clear error a district court’s findings on whether a defendant is

entitled   to    a    mitigating      role    reduction.     United     States   v.



                                          2
Virgen-Moreno, 265 F.3d 276, 296 (5th Cir. 2001); Villanueva, 2005

WL 958221, *9 n.9.

          To qualify as a minor participant, a defendant “must have

been peripheral to the advancement of the illicit activity.”

United States v. Miranda, 248 F.3d 434, 446-47 (5th Cir. 2001).           “A

downward adjustment is appropriate only where a defendant was

substantially less culpable than the average participant.”          United

States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir. 1999)

(internal quotation marks omitted).       The defendant has the burden

of proving that his role in the offense was minimal or minor.

United States v. Atanda, 60 F.3d 196, 198 (5th Cir. 1995).

          Arriyaga-Perez is equally culpable as the sixteen other

men who were recruited to bring bundles of marijuana into the

United States.     Furthermore, Arriyaga-Perez’s conduct was not

peripheral to the offense; his involvement began at the warehouses

and continued until he was found with a large quantity of marijuana

in the United States.    He also expected to be paid for his partici-

pation in the offense.    Accordingly, the district court’s determi-

nation that Arriyaga-Perez was not a minor participant was not

clearly erroneous.      See United States v. Valencia-Gonzales, 172

F.3d 344, 346-47 (5th Cir. 1999).

          Third, Arriyaga-Perez argues that, under United States v.

Booker, 125 S. Ct. 738 (2005), his Sixth Amendment rights were

violated when    the   district   court   sentenced   him   based   on   509

kilograms of marijuana when he admitted only to “in excess of 100

                                    3
kilograms” of marijuana. Because Arriyaga-Perez did not raise this

issue in the district court, we review this claim for plain error.

See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),

petition for cert. filed, (Mar. 31, 2005) (No. 04-9517) .

          Under the plain-error standard applied in Mares, the

pertinent question is whether “the sentencing judge--sentencing

under an advisory scheme rather than a mandatory one--would have

reached a significantly different result.”     Id.   The record does

not contain anything to reflect what the district court would have

done had it sentenced him under an advisory scheme. Arriyaga-Perez

has not sustained his burden of showing that the court would have

reached a “significantly different result” under an advisory scheme

and has consequently failed to show plain error as to his Sixth

Amendment argument.   See id.; United States v. Akpan,      F.3d    ,

2005 WL 852416, *13 (5th Cir. 2005).

          Last, Arriyaga-Perez argues that the statute under which

he was convicted, 21 U.S.C. § 841(a) and (b) is unconstitutional on

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

have specifically rejected the argument that Apprendi rendered 21

U.S.C. § 841’s sentencing provisions facially unconstitutional.

United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000); see

also United States v. Valenzuela-Quevedo,        F.3d     , 2005 WL

941353, *2 (5th Cir. 2005).   We are bound by our prior precedent on

this issue.   See United States v. Lee, 310 F.3d 787, 789 (5th Cir.

2002).

                                  4
The judgment of the district court is AFFIRMED.




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