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that this opinion should not be published and is not precedent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

November 26, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-40862

Summary Calendar

 

UNITED STATES OF AMERICA,

 

 Plaintiff-Appellee, 

 

versus

 

ROLANDO JESUS ARAMBUL; ABELARDO ANDAVERDE-GONZALEZ

aka Abelardo De Verde-Gonzalez, 

 Defendants-Appellants. 

 

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. B-02-CR-5-4

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

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Rolando Jesus Arambul and Abelardo Andaverde-Gonzalez were

convicted of conspiracy to possess with intent to distribute more

than 1,000 kilograms of marijuana, and with aiding and abetting

possession with intent to distribute 3,961.4 kilograms of

marijuana, all in violation of 21 U.S.C. §§ 846, 841(a)(1) and

(b)(1)(A); 18 U.S.C. § 2. Arambul was sentenced to 210 months in

prison and a five-year term of supervised release. Andaverde was

sentenced to 168 months of imprisonment and a five-year term of
No. 02-40862

-2-

supervised release. Both Arambul and Andaverde filed timely

notices of appeal.

Arambul argues only that 21 U.S.C. § 841 is facially

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

(2000), because the statute’s structure treats drug types and

quantities as sentencing factors. Arambul concedes that his

argument is foreclosed by United States v. Slaughter, 238 F.3d 580,

582 (5th Cir. 2000), but he raises the issue in order to preserve

it for possible Supreme Court review.

Andaverde argues that there was insufficient evidence to

support his convictions. There was evidence that Andaverde helped

to unload a U-Haul truck full of marijuana into a vacant stash

house and that the marijuana was stacked floor to ceiling and wall

to wall in a bedroom. There was also evidence that Andaverde

helped to unpackage some of the marijuana from the nylon flour

sacks in which it was contained and that, of all the participants

arrested, Andaverde’s clothes were the dirtiest from the white

flour from the nylon sacks. Viewing this evidence in the light

most favorable to the verdict, there was sufficient evidence to

support Andaverde’s convictions. See United States v. Alix, 86

F.3d 429, 436 (5th Cir. 1996); United States v. Lopez,74 F.3d 575,

577 (5th Cir. 1996); United States v. Fierro, 38 F.3d 761, 768 (5th

Cir. 1994); United States v. Bermea, 30 F.3d 1539, 1551 (5th Cir.

1994); United States v. Lopez, 979 F.2d 1024, 1031 (5th Cir. 1992).
No. 02-40862

-3-

Andaverde also argues that the district court erred

in refusing to assign him a mitigating role in the offense.

However, Andaverde has not met his burden of showing that the

district court clearly erred in determining that he did not play a

minor or minimal role in the offense. See United States v. Zuniga,

18 F.3d 1254, 1261 (5th Cir. 1994); United States

v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir. 1989).

AFFIRMED.