* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

September 12, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40265

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NUVIA LETICIA GARCIA,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. C-02-CR-245-1

--------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Nuvia Leticia Garcia appeals her guilty-plea conviction and

sentence for possession of more than five kilograms of cocaine with

intent to distribute, a violation of 21 U.S.C. § 841(a)(1) and

(b)(1). 

Garcia argues that the district court clearly erred in

refusing to grant her a two-level “minor role” reduction under

U.S.S.G. § 3B1.2(b), based on her having been only a drug courier.

She also maintains--for the first time on appeal--that the district
2

court abused its discretion by denying a minor-role reduction based

on a personal, fixed policy of always denying such reductions to

drug couriers. Insofar as Garcia directly challenges the denial of

the reduction, the district court did not clearly err. See LealMendoza, 281 F.3d 473, 477 (5th Cir. 2002). The court’s having

noted that Garcia was transporting a large quantity of drugs and

that she had done so before were sufficient to support the denial.

See, e.g., id.; United States v. Marmolejo, 106 F.3d 1213, 1217

(5th Cir. 1997). 

Garcia’s challenge to the district court’s reliance on

a personal “fixed policy” of denying U.S.S.G. § 3B1.2(b) reductions

to all drug couriers is reviewable for plain error only. See

United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en

banc); United States v. Olano, 507 U.S. 725, 732 (1993).

The district court judge in the instant case stated he has “always”

denied the reduction to drug couriers and “always will continue to

deny it.” It is at least arguable that the district judge’s

explicit reliance on a personal policy of denying the minor-role

reduction to all drug couriers is an improper abdication of the his

judicial responsibility to address the individualized record of

each defendant when imposing sentence. See United States v.

Hartford, 489 F.2d 652, 655 (5th Cir. 1974); United States v.

Clements, 634 F.2d 183, 186-87 (5th Cir. 1981); United States v.

Johnson, 33 F.3d 8, 10 (5th Cir. 1994). Nonetheless, under the
G:\opin-sc\03-40265.opn.wpd 3

plain-error standard, Garcia has established neither that any such

error was “clear” or “obvious” nor that her “substantial rights”

were affected thereby. See Olano, 507 U.S. at 734 (substantial

rights are affected only if error “affects the outcome of the

proceeding”). 

For the first time on appeal, Garcia also maintains that the

sentencing scheme of 21 U.S.C. § 841 is facially unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

As Garcia concedes, her argument is foreclosed by this court’s

decision in United States v. Slaughter, 238 F.3d 580, 582 (5th Cir.

2000). She raises the issue only to preserve it for possible

further review. 

The judgment of the district court is AFFIRMED.