                                                                                      United States Court of Appeals
                                                                                               Fifth Circuit
                                                                                             F I L E D
                                                                                               May 6, 2004
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                         Charles R. Fulbruge III
                                  FOR THE FIFTH CIRCUIT                                          Clerk



                                           No. 03-40567
                                         Summary Calendar


UNITED STATES OF AMERICA,

                                                                                        Plaintiff-
                                                          Appellee,

                                                 versus

ROBERTO CARLOS RAMOS,

                                                                                      Defendant-
                                                          Appellant.

                        -----------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Southern District of Texas
                                   USDC No. L-02-CR-1698-ALL
                       ------------------------------------------------------------

Before SMITH, DeMOSS AND STEWART, Circuit Judges.

PER CURIAM:*

       Roberto Carlos Ramos appeals the sentence he received after he pleaded guilty to possession

with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Ramos argues

that the district court committed plain error in sentencing him when it used the gross weight of

cocaine, which included its packaging. Because Ramos’s fact-based argument that the Presentence



       *
          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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40567
                                               -2-

Report (PSR) incorrectly calculated the quantity of cocaine involved in his offense could have been

resolved by the district court if he had properly raised the issue in the district court, Ramos has not

shown plain error. See Robertson v. Plano City of Texas, 70 F.3d 21, 23 (5th Cir. 1995). T h e

district court was entitled to make its drug quantity calculation without further inquiry because

Ramos did not present any evidence to refute the information in the PSR or his admission in his

factual basis that he possessed 2.04 kilograms of cocaine. See United States v. Puig-Infante, 19 F.3d

929, 943 (5th Cir. 1994).

       Ramos also contends, for the first time on appeal, that 21 U.S.C. § 841 was rendered

unconstitutional by Apprendi v. New Jersey, 530 U.S. 466 (2000), because drug types and quantities

should be treated as elements of the offense of possession with intent to distribute. Ramos concedes

that his argument runs counter to this court’s caselaw; he raises the issue to preserve it for Supreme

Court review. Apprendi did not render 21 U.S.C. § 841 facially unconstitutional, and Ramos has not

shown error, plain or otherwise. See United States v. Vasquez, 298 F.3d 354, 356, 360 (5th Cir.),

cert. denied, 123 S. Ct. 546 (2002).

       AFFIRMED.




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