United States v. Flores , 122 F. App'x 720 ( 2004 )

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                                                           United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                December 16, 2004
Charles R. Fulbruge III
Clerk
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
*
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this opinion should not be published and is not precedent except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.
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