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this opinion should not be published and is not precedent except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

February 27, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-20647

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO CAMACHO,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:04-CR-26-1

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

Before REAVLEY, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Ricardo Camacho appeals the sentence imposed following his

guilty-plea conviction of conspiracy with intent to distribute

more than five kilograms or more of cocaine and one count on the

underlying possession with intent to distribute, in violation of

21 U.S.C. § 841. The district court sentenced Camacho to 96

months in prison, based on relevant-conduct drug quantity and a

finding that Camacho was not a “minor” participant in the

conspiracy.
No. 04-20647

-2-

Camacho contends that his sentence is illegal under United

States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because it

was based on a drug quantity that was not alleged in the

indictment and proved or admitted and because the sentence was

imposed pursuant to a mandatory application of the federal

sentencing guidelines. He thus alleges both “Booker” error and

“Fanfan” error. See United States v. Walters, 418 F.3d 461, 463

(5th Cir. 2005). 

Neither a Booker nor a Fanfan error is structural error. 

See United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.),

cert. denied, 126 S. Ct. 464 (2005). There was no Sixth

Amendment violation because Camacho’s sentence was based on facts

he admitted at rearraignment. See Booker, 125 S. Ct. at 756;

United States v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th

Cir.), cert. denied, 126 S. Ct. 267 (2005). 

The Government concedes that the preserved Fanfan error is

subject to review for harmless error. See Walters, 418 F.3d 461,

464. The Government fails to show beyond a reasonable doubt that

the district court’s error had no effect on Camacho’s sentence. 

We therefore remand the case for the district court to decide

whether resentencing is appropriate. 

Camacho contends that the district court erred by refusing

to reduce his offense level based on his minor role in the

conspiracy. The record shows that he did more than transport the

drugs, and the finding of the court is not clearly erroneous. 

Camacho contends that 21 U.S.C. § 841 is facially

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
No. 04-20647

-3-

(2000), because it treats drug type and quantity as sentencing

factors instead of as elements of the offense which must be

alleged in the indictment and proved to a jury. Apprendi did not

render § 841 unconstitutional. United States v. Slaughter, 238

F.3d 580, 582 (5th Cir. 2000). Camacho concedes that his

argument is foreclosed by Slaughter; he raises it only to

preserve it for possible future review. 

CONVICTION AFFIRMED; case REMANDED for consideration of the

sentence.