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this opinion should not be published and is not precedent except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

December 16, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40540

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN RAY FLORES,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:04-CR-2-1

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

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

John Ray Flores appeals his guilty-plea conviction and

sentence for importing 58 kilograms of marijuana into the United

States in violation of 21 U.S.C. §§ 952 and 960 and 18 U.S.C.

§ 2. He argues that the district court erred in denying him a

reduction in his offense level for a mitigating role in the

offense under U.S.S.G. § 3B1.2. Flores has not shown that the

district court clearly erred in determining that he was not

entitled to a reduction in his offense level for a mitigating

role in the offense as he was carrying a large amount (58
No. 04-40540

-2-

kilograms) of marijuana and as a courier he was an “indispensable

part of drug dealing networks.” See United States v. Buenrostro,

868 F.2d 135, 138 (5th Cir. 1989); see also United States v.

Rojas, 868 F.2d 1409, 1409-10 (5th Cir. 1989).

Flores argues that the district court erred in departing

upward based on improper factors and that the district court’s

failure to give further written reasons for its upward departure

was plain error. The district court based its decision to depart

upward on factors which were authorized under 18 U.S.C. § 3553(b)

and the Sentencing Guidelines, including Flores’s extensive

criminal background and his propensity to recidivism. See

U.S.S.G. §§ 4A1.3, 5K2.0; 18 U.S.C. § 3553(b); see also United

States v. Milton, 147 F.3d 414, 420-21 (5th Cir. 1998). Flores

has three juvenile convictions which were not included in his

criminal history score; he admitted to being part of a dangerous

gang, the “Tri-City Bombers”; his criminal activity continued

over the next six years and became progressively more violent;

and he committed the instant offense within three months of his

release from jail for the injury to a child offense. See United

States v. Winters, 105 F.3d 200, 205 (5th Cir. 1997). Moreover,

Flores has not shown that the district court’s written reasons

were insufficient under 18 U.S.C. § 3553(c)(2) or that the

district court’s failure to provide further written reasons

constituted plain error. See United States v. Ravitch, 128 F.3d

865, 869 (5th Cir. 1997).
No. 04-40540

-3-

Flores also argues that the district court’s upward

departure was improper in view of Blakely v. Washington, 124

S. Ct. 2531 (2004). Flores’s argument is foreclosed by United

States v. Pineiro, 377 F.3d 464, 465 (5th Cir.), petition for

cert. filed, (U.S. July 14, 2004)(No. 04-5263).

Flores argues that 21 U.S.C. §§ 952 and 960 are

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466

(2000). Flores’s argument is foreclosed by United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000). Slaughter applies

by analogy to the instant case because the statutes at issue are

similar in structure and content. One panel of this court may

not overrule another. See United States v. Fowler, 216 F.3d 459,

461 (5th Cir.), cert. denied, 531 U.S. 960 (2000).

AFFIRMED.