IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20135 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DUNCAN BURTON,

Defendant-Appellant.

- - - - - - - - - - Appeals from the United States District Court for the Southern District of Texas USDC No. H-95-CR-303-9 - - - - - - - - - - January 16, 2002 Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Duncan Burton appeals his jury convictions and sentences for

conspiracy and possession of cocaine with intent to distribute.

The district court did not err in admitting into evidence the

cocaine Burton turned over to authorities or in instructing the

jury to use the cocaine in its resolution of the conspiracy charge

because the ultimate fact of when Burton had withdrawn from the

conspiracy had never been determined by a valid and final judgment.

United States v. Brackett,

(5th Cir. 1997).

The principle announced in Apprendi v. New Jersey,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20135 -2-

(2000), does not apply as Burton was sentenced within the statutory

maximum. See United States v. Cathey,

, 368 & n.12

(5th Cir. 2001). The district court did not err in denying

Burton’s late-hour request for subpoenas because Burton failed to

demonstrate the necessity of the named witnesses. See United

States v. Valenzuela-Bernal,

(1982); United

States v. Goodwin,

(5th Cir. 1980). The evidence

was sufficient to prove beyond a reasonable doubt that Burton knew

that he was engaged in drug trafficking. United States v. Medina,

(5th Cir. 1998); United States v. Gonzales,

(5th Cir. 1996).

Because Burton’s base offense level was based upon his

personal participation in the conspiracy, the district court did

not clearly err in denying his request for a minor role adjustment.

United States v. Atanda,

(5th Cir. 1995).

Finally, because the court did not misapprehend its authority under

the Sentencing Guidelines, we lack jurisdiction to review the

district court’s refusal to grant a downward departure under

U.S.S.G. § 5K2.16 based on Burton’s voluntary disclosure of his

conduct. United States v. DiMarco,

(5th Cir.

1995). That portion of the appeal is DISMISSED.

AFFIRMED IN PART; DISMISSED IN PART.