IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40394 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GEORGE LUIS GUTIERREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (M-99-CR-546-1) -------------------- February 28, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Defendant-Appellant George Luis Gutierrez appeals his sentence

for conspiracy to possess with intent to distribute 1,540 kilograms

of marijuana in violation of

, 841(a)(1), and

841(b)(1)(A). Gutierrez argues first that the district court erred

when it increased his base offense level by four pursuant to

U.S.S.G. § 3B1.1(a) for being the leader or organizer of a criminal

activity that involved five or more participants or was otherwise

extensive. Specifically, Gutierrez complains that the Presentence

Investigation Report (PSR) improperly contains the conclusions of

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. the DEA agents. The PSR contained more than the bald assertions

and conclusions of the DEA agents and was sufficient to support a

finding that Gutierrez was a leader or organizer. See United

States v. Elwood,

(5th Cir. 1993). As Gutierrez

presented no rebuttal evidence at sentencing, the district court

was entitled to rely on the PSR in making its factual

determinations. See United States v. Alford,

(5th Cir. 1998).

Gutierrez next contends that the district court erred when it

enhanced his sentence pursuant to U.S.S.G. § 3B1.4 for the use of

minors to commit a crime. We review the district court's factual

findings for clear error. See United States v. Thomas,

(5th Cir. 1997). Gutierrez admitted at sentencing that

his wife and children were present with him while he supervised the

transportation of marijuana. The district court could infer that

Gutierrez had orchestrated the presence of his children in an

attempt to give the appearance of a family traveling together and

thereby avoid detection by law enforcement. Such an inclusion of

children is a "use" of minors for purposes of § 3B1.4.

Gutierrez asserts next that application of § 3B1.4 violates

the Ex Post Facto Clause because there is no evidence that he used

his children after November 1, 1995, the effective date of this

guideline. As Gutierrez did not raise this objection in the

district court, our review is limited to plain error. See United

States v. Navejar,

(5th Cir. 1992). Gutierrez

pleaded guilty to a conspiracy that lasted until after the

2 effective date of the subject guideline provision. Therefore,

application of the guideline did not violate the Ex Post Facto

Clause. See United States v. Buckhalter,

(5th

Cir. 1993).

Finally, relying on Apprendi v. New Jersey,

,

(2000), Gutierrez argues that the district

court erred when it enhanced his sentence as a career offender

based on prior criminal history that was not alleged in the

indictment and submitted to the jury. Apprendi expressly states,

however, that "[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt." Id. at 2362-63. Thus, Apprendi does not

require that Gutierrez's prior convictions be alleged in the

indictment. Moreover, Gutierrez's sentence of 292 months does not

exceed the statutory maximum based on his criminal history, so

Apprendi would not be applicable even absent its recidivism

exception. See United States v. Doggett,

(5th

Cir. 2000), petition for cert. filed, __ U.S.L.W. __ (U.S. Jan. 4,

2001)(No. 00-7819);

(b)(1)(A).

AFFIRMED.

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