United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 15, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _________________________ Clerk No. 02-20362 SUMMARY CALENDAR _________________________ UNITED STATES OF AMERICA Plaintiff - Appellee v. ROBERT GARZA, JR Defendant - Appellant ______________________________________________________________________________ On Appeal from the United States District Court for the Southern District of Texas, Houston Division (6:01-CR-33-2) ______________________________________________________________________________ Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1 Robert Garza, Jr. appeals his sentence following his guilty-plea conviction for possession with intent to distribute cocaine. He argues that the district court clearly erred when it refused to credit him with acceptance of responsibility. He states that the court’s determination that he did not accept responsibility because he denied knowing that the cocaine he delivered was going to be converted into crack cocaine conflicts with the court’s decision to not sentence him based upon

Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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- crack cocaine.

The record indicates that Garza waived his right to appeal his sentence except to challenge an upward departure from the Sentencing Guidelines, a sentence above the statutory maximum, or the type of drug upon which his sentence was calculated. See United States v. Baymon, 312 F.3d 725, 729 (5th Cir. 2002). Even if Garza did not waive his appellate acceptance-of-responsibility argument, there was a sufficient foundation in the record supporting the district court’s finding that Garza frivolously denied knowing that the cocaine he delivered would be converted into crack cocaine. See United States v. Brace, 145 F.3d 247, 264 (5th Cir. 1998); United States v. Patino-Cardenas, 85 F.3d 1133, 1135 (5th Cir. 1995); see also USSG § 3E1.1, comment. (n.1(a)).

AFFIRMED.

-2-