IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10476 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALVIN O’NEAL DAVIS, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:99-CR-276-1-A -------------------- March 16, 2001

Before JOLLY, SMITH, and DUHÉ, Circuit Judges.

PER CURIAM:1

Alvin O’Neal Davis, Jr., appeals his guilty plea conviction

for possession with the intent to distribute cocaine base, in

violation of

(a)(1) and (b)(1)(A). Davis argues

that the factual basis for his guilty plea was insufficient to

support the possession element of the offense. He further

contends that, pursuant to Apprendi v. New Jersey,

(2000), the district court erred by failing to admonish Davis at

his rearraignment that drug quantity was an element of the offense,

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. thereby rendering Davis’ guilty plea involuntarily made. Davis

also asserts that error resulted from the Government’s decision

against filing a motion for downward departure pursuant to U.S.S.G.

§ 5K1.1.

We have reviewed the record and briefs submitted by the

parties and hold that there was an adequate factual basis to

support the possession element of the offense, and that any error

committed by the district court in failing to admonish Davis that

drug quantity was an element of the offense was harmless. United

States v. Marek,

(5th Cir. Jan. 4, 2001, Nos. 98-

40568, 98-40955)(en banc),

; United States v.

Cuevas-Andrade,

(5th Cir. 2000). We further hold

that, pursuant to the terms of Davis’ plea agreement, the

Government was not required to file a motion for downward

departure. United States v. Aderholt,

(5th Cir.

1996).

AFFIRMED.

2