United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                      UNITED STATES COURT OF APPEALS
                               FIFTH CIRCUIT                       October 10, 2003

                                                               Charles R. Fulbruge III
                                                                       Clerk
                                No. 03-40272
                              Summary Calendar



                        UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,
                                   versus

                ROGELIO RIGOBERTO MORALES-SANTAMARIA,

                                                      Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                         (C-02-CR-290-1)


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

PER CURIAM:*

     Rogelio Rigoberto Morales-Santamaria appeals his guilty-plea

conviction and sentence for possession of heroin with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1).

Morales contends that the district court erred in refusing to grant

his request for a two-level “minor role” reduction under Sentencing

Guidelines § 3B1.2(b).        He asserts that the district court abused

its sentencing discretion by relying on a fixed policy of denying

the reduction    to    drug   couriers.     Morales   maintains    that    the



     *
        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this opinion should not be published and is not precedent except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.
district court’s de facto policy amounts to an improper personal

disagreement with the Sentencing Commission’s conclusions about the

eligibility of drug couriers for the reduction.   He seeks a remand

to a different judge for resentencing.

     We review for clear error the denial of an adjustment for a

minor role.   E.g., United States v. Gaytan, 

, 561 (5th

Cir.), cert. denied, 

(1996).         Morales contends,

however, that our review is for abuse of discretion where, as here,

a district judge fails to properly exercise his discretion by

instead sentencing according to a blanket policy. United States v.

Hartford, 

, 655 (5th Cir. 1974).   Although the district

judge’s statement that he “steadfastly refuses” to grant a minor

role reduction to drug couriers reflects such a policy, see United

States v. Garcia, No. 03-40265, 

(5th Cir. 2003),

the record also reflects that the district judge requested argument

about Morales’ role in the drug trafficking and considered factors

specific to his case before deciding Morales was not entitled to

the reduction. Therefore, the stated policy of always refusing the

minor role reduction was of no effect; we review for clear error.

     The record reflects that Morales transported a large quantity

of heroin (1.6 kilograms) and traveled over 400 miles to do so.

The district court also properly considered the scope of Morales’

drug trafficking offense in the larger picture of drug trafficking

in this Country.   United States v. Buenrostro, 

, 138


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(5th Cir. 1989).     In the light of the facts, the district court did

not clearly err in finding Morales not entitled to a minor role

reduction.     “[S]ome    couriers   may   appropriately    receive   the

reduction; ... all couriers are [not] entitled to a downward

adjustment”.   

first time on appeal, Morales also maintains that the

sentencing scheme of 21 U.S.C. § 841 is facially unconstitutional

in the light of Apprendi v. New Jersey, 

, 490 (2000).

Morales concedes that his contention is foreclosed by United States

v. Slaughter, 

, 582 (5th Cir. 2000).           He raises the

issue only to preserve it for possible further review.

                                                             AFFIRMED




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