UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20452 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

JOSE A. DIAZ, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-738-1

March 15, 2001 Before POLITZ, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jose A. Diaz appeals his conviction and sentence for conspiracy to possess

cocaine and for the possession of cocaine with intent to distribute.1 He contends

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1

(a)(1) & (b)(1), 846. that: (1) there was insufficient evidence to support his conviction; (2) the district

court erred in calculating the drug quantity for sentencing purposes; and (3) in

light of Apprendi v. New Jersey,

(2000), and Jones v. United

States,

(1999), the district court erred in not presenting the drug-

quantity issue to the jury.

Our review of the record and briefs of the parties persuades that the

evidence was sufficient for a reasonable jury to find Diaz guilty beyond a

reasonable doubt.2 Further, the district court did not err when it estimated the

drug quantity for sentencing based on the facts contained in the presentence

investigation report which it adopted.3 Finally, Diaz’s contention with respect to

the teachings of Apprendi and Jones lacks merit because he obviously was

sentenced below the statutory maximum.4 Accordingly, Diaz’s conviction and

sentence are AFFIRMED.

2 United States v. Meshack,

(5th Cir. 2000), cert. denied sub nom. Parker v. United States,

(2001); United States v. Westbrook,

(5th Cir. 1997). 3 United States v. Franklin,

(5th Cir. 1998). 4 United States v. Doggett,

(5th Cir. 2000), petition for cert. filed (Jan. 4, 2001) (No. 00-7819); United States v. Keith,

(5th Cir. 2000), petition for cert. filed (Jan. 16, 2001) (No. 00-8077).

2