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opinion should not be published and is not precedent except under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

FILED

United States Court of Appeals

Fifth Circuit

March 27, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-40986

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID EDWARD PAGE,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. M-01-CR-802-2

 

Before GARWOOD, JOLLY and SMITH, Circuit Judges.

PER CURIAM:*

David Edward Page pleaded guilty to one charge of possession

with intent to distribute 430.1 kilograms of marihuana in violation

of 21 U.S.C. § 841, and the district court sentenced him to forty

months in prison and a three-year term of supervised release. Page

argues on appeal that the district court committed clear error in

denying him a decrease in his base offense level in accordance with

U.S.S.G. § 3B1.2 because his role in the offense was limited to
1We note in passing that Page’s base offense level was 28,

calculated on the some 458 kilograms of marihuana in the vehicle he

was driving (and was the sole occupant of) from the Rio Grande

Valley to Chicago; Page was granted a three level reduction, to

level 25, for acceptance of responsibility. With his criminal

history category IV, this produced a guideline imprisonment range

of 84 to 105 months. Given the quantity of marihuana, Page was

subject to a statutory minimum sentence of five years. 21 U.S.C.

§ 841(b)(1)(B)(vii). However, the Government moved for downward

departure under guidelines section 5K1.1 on account of the

substantial assistance Page had provided, thus authorizing the

court to impose a sentence below the statutory minimum. The

Government indicated it was requesting a three level downward

departure, to offense level 22, which would have produced a

guidelines imprisonment range of 63 to 78 months. The court

granted the Government’s motion to depart, but departed

considerably farther than the Government had requested, imposing a

40 month sentence (a seven level departure, to level 18, would have

produced a guidelines imprisonment range of 41 to 51 months). Had

the court granted Page a four level reduction for having a minimal

role in the offense, which would have reduced his offense level to

21, his guideline imprisonment range without any departure would

have been 57 to 71 months; and, if, in addition to that, the court

had simply granted the three level reduction requested in the

Government’s 5K1.1 motion (instead of granting a greater departure)

the offense level would likewise have been 18 with a guideline

imprisonment range of 41 to 51 months. The court’s actual sentence

of 40 months is within the guideline imprisonment range of 33 to 41

months for offense level 16. 

2

that of a drug courier. Page has not shown that the district court

erred in refusing to give him this adjustment. See United States

v. Deavours, 219 F.3d 400, 404 (5th Cir. 2000); United States v.

Gallegos, 868 F.2d 711, 713 (5th Cir. 1989).1

Page further contends that 21 U.S.C. §§ 841(a), (b), are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). As Page contends, his argument is foreclosed by this

court’s decision in United States v. Slaughter, 238 F.3d 580, 582

(5th Cir. 2000). Page has shown no error in the district court’s
3

judgment. Accordingly, that judgment is

AFFIRMED.