United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 13, 2004

Charles R. Fulbruge III Clerk No. 03-20940 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN JOSE CASTRO, also known as Ray Sanchez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:02-CR-575-2 --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Jose Castro appeals his conviction and sentence

following his guilty plea to conspiracy to possess with intent to

distribute more than five kilograms of cocaine. Relying on

Apprendi v. New Jersey,

(2000), and Blakely v.

Washington,

(2004), Castro argues that his guilty

plea, which included a waiver-of-appeal provision, was

involuntary because the district court did not inform him of the

drug quantity on which he would be sentenced.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-20940 -2-

Castro was rearraigned before Blakely was decided. Further,

this court has determined that Blakely does not apply to the

Guidelines. See United States v. Pineiro,

(5th Cir. 2004), pet. for cert. filed (U.S. July 14, 2004)(No.

04-5263). Moreover, because Castro was not sentenced above the

statutory maximum, his reliance on Apprendi is misplaced. See

United States v. Doggett,

(5th Cir. 2000).

Thus, the district court was under no duty under Rule 11 to

advise Castro that he had a right to a jury trial on the amount

of intended loss or his role in the offense inasmuch as those

were factors that increased his sentence under the Guidelines.

See Pineiro,

. As such, Castro fails to show

that the district court’s acceptance of his guilty plea was

error. See United States v. Vonn,

(2002); United

States v. Olano,

(1997); United States v.

Vasquez,

(5th Cir. 2000). Nor does Castro show

that his substantial rights were affected inasmuch as the same

base offense level applies to 6.05 kilograms of cocaine as to 5

kilograms. See Olano,

; Vasquez,

; U.S.S.G. § 2D1.1(c)(4).

Castro has shown no defect in his indictment on the basis

that it did not charge the drug quantity on which his sentence

was based as an element of his offense. See Pineiro,

.

AFFIRMED.

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