                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 10, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-20415
                          Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BARAKUMO GOODLUCK LOYA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:04-CR-508-ALL
                      --------------------

Before Barksdale, Stewart, and Clement, Circuit Judges.

PER CURIAM:*

     Barakumo Goodluck Loya (Loya) appeals his sentence following

his guilty-plea convictions for possession with intent to

distribute more than 100 grams of heroin and importation of more

than 100 grams of heroin.   Loya was sentenced to 87 months of

imprisonment and five years of supervised release.

     Loya’s offense occurred prior to the decision in United

States v. Booker, 543 U.S. 220 (2005), but he was sentenced after

Booker was decided.   Loya argues that, although he is entitled to


     *
       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this opinion should not be published and is not precedent except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. 05-20415
                                -2-

retroactive application of Booker’s Sixth Amendment holding, the

remedial portion of Booker’s holding, which made the Sentencing

Guidelines advisory, may not be applied in his case without

violating the Due Process and Ex Post Facto Clauses of the

Constitution.   This question is foreclosed.   See United States v.

Austin, 432 F.3d 598, 599-600 (5th Cir. 2005); United States v.

Scroggins, 411 F.3d 572, 575-76 (5th Cir. 2005).

     Loya also argues that the district court erred by denying

him a minor role adjustment pursuant to U.S.S.G. § 3B1.2.

Following Booker, this court reviews the district court’s

application of the Sentencing Guidelines de novo and reviews

factual findings for clear error.   See United States v. Villegas,

404 F.3d 355, 359 (5th Cir. 2005); United States v. Villanueva,

408 F.3d 193, 203 & n.9 (5th Cir.), cert. denied, 126 S. Ct. 268

(2005).   Although Loya asserts that he merely served as the

courier for the heroin, the record reveals that Loya met with

several others involved in the smuggling operation, that he was

able to persuade the others to change certain details of the

operation (such as the length of time he would be in Nigeria and

the airport from which he would depart), that he was to be paid a

substantial sum for transporting a large quantity (one kilogram)

of heroin, and that his role as courier was indispensable to the

overall operation.   Based on these facts, we conclude that the

district court did not clearly err in denying a mitigating role

adjustment.
                            No. 05-20415
                                 -3-

     Loya argues that 21 U.S.C. §§ 841 and 960 were rendered

facially unconstitutional by Apprendi v. New Jersey, 530 U.S.

466, 490 (2000).    He concedes that this argument is foreclosed by

our opinion in United States v. Slaughter, 238 F.3d 580, 581-82

(5th Cir. 2000), which rejected a broad Apprendi-based attack on

the constitutionality of 21 U.S.C. § 841.   He raises these issues

only to preserve them for Supreme Court review.

     Loya has also filed a pro se motion to relieve the Federal

Public Defender and to appoint new counsel on appeal.   This

motion is DENIED.

     AFFIRMED; MOTION FOR APPOINTMENT OF NEW COUNSEL DENIED.
