United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 1, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-41421
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

                       JUAN LOPEZ-CARDENAS,

                                                 Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. L-03-CR-452-1
                      --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Juan Lopez-Cardenas pleaded guilty to possession of more than

100 kilograms of marijuana with intent to distribute and has

appealed his sentence. Lopez was among a group of persons carrying

bundles of marijuana across the United States border with Mexico.

Lopez contends that he should have been sentenced on the basis of

the marijuana he carried only and that his offense level should

have been adjusted because he had a minor role.

     Under U.S.S.G. § 2D1.1(a)(3), the base offense level for a

     *
       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this opinion should not be published and is not precedent except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.
defendant convicted of a drug offense is determined based on the

quantity of drugs involved.                       United States v. Hernandez-Coronado,

, 574 (5th Cir. 1994).                           Under U.S.S.G. § 1B1.3(a)(1),

“[t]his quantity includes both drugs with which the defendant was

directly involved and drugs that can be attributed to the defendant

in a conspiracy as part of his relevant conduct.”                            

court did not clearly err in finding that Lopez was responsible for

the drugs carried by the other couriers because he was engaged with

them in a jointly undertaken criminal activity.                              See 

  did   not    carry      his   burden    under    U.S.S.G.

§ 3B1.2(b) of showing that he was substantially less culpable than

the average participant, the district court did not clearly err in

refusing to adjust Lopez’s offense level because of his role in the

offense.            See United States v. Brown, 

, 240–41 & n.7

(5th Cir. 1995).

          Lopez         contends        that      28       U.S.C.   §   841(a)    &     (b)   is

unconstitutional in light of Apprendi v. New Jersey, 

(2000). Lopez acknowledges that this issue is foreclosed by United

States v. Slaughter, 

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

the issue to preserve it for possible further review.

          AFFIRMED.




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