IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40251 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS GUZMAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:99-CR-121-1 -------------------- February 13, 2001

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

PER CURIAM:*

Jose Luis Guzman, proceeding pro se, appeals from his

guilty-plea conviction and sentence for possession with the

intent to distribute cocaine.

Guzman argues that the district court erred in failing to

account for Guzman’s minor role in the offense. Guzman presents

his issue as one pursuant to U.S.S.G. § 3B1.2. However, the

issue was presented to the district court through a motion for a

downward departure. See U.S.S.G. § 5K2.0. Consequently, we

construe the argument as whether the district court erred in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40251 -2-

denying the motion for downward departure based in part on

Guzman’s purported minor role in the offense. This court has

“jurisdiction to review a district court’s decision not to depart

downward from the guideline range only if the district court

based its decision upon an erroneous belief that it lacked the

authority to depart.” United States v. Landerman,

(5th Cir. 1999). The district court stated at sentencing

that it had the authority to depart and declined to do so. Thus,

the issue is not reviewable. See Landerman,

.

Guzman argues that the district court erred in adjusting his

offense level by two for possession of firearms, pursuant to

U.S.S.G. § 2D1.1(b)(1). The district court alternatively

construed the motion for downward departure as an objection to

this enhancement and denied the objection. “The adjustment

should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.”

U.S.S.G. § 2D1.1, comment. (n.3). The district court relied upon

the information in the presentence report (PSR), and “a PSR bears

sufficient indicia of reliability to permit the sentencing court

to rely on it at sentencing.” United States v. Ayala,

(5th Cir. 1995). The district court’s finding is not

clearly erroneous. See United States v. Castillo,

(5th Cir. 1996).

For the first time on appeal, Guzman asserts that the two-

level adjustment pursuant to U.S.S.G. § 2D1.1(b)(1) was error in

light of Apprendi v. New Jersey,

(2000),

which held “any fact that increases the penalty for a crime No. 00-40251 -3-

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.” Through the signed

plea agreement, Guzman waived his right to appeal his sentence

except for guideline determinations. Even if this issue were

properly before this court, no error, plain or otherwise, is

evident. See United States v. Keith,

(5th Cir.

2000); United States v. Calverley,

(1994) (en

banc).

AFFIRMED.