                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT


                             No. 02-40706
                           Summary Calendar


                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                 versus

                       JOSE MARCOS VELA-TORRES,

                                                     Defendant-Appellant.


             Appeal from the United States District Court
                  for the Southern District of Texas
                            (B-01-CR-621-1)

                        February 19, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jose     Marcos   Vela-Torres     appeals    from    his   guilty-plea

conviction     of   possession   of,    with     intent   to    distribute,

approximately 91 kilograms of marijuana, in violation of 21 U.S.C.

§ 841.

     Vela-Torres contends the district court committed reversible

plain error by assigning one criminal history point for a sentence

imposed more than ten years before commencement of the instant

offense.     See U.S.S.G. § 4A1.1, cmt. n. 3.       This error, however,


     *
        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that this opinion should not be published and is not precedent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.
did not affect Vela-Torres’ guidelines range. Because the district

court could “lawfully and reasonably” impose the same sentence on

remand, Vela-Torres has not shown that this mistake constitutes

plain error.   See United States v. Ravitch, 128 F.3d 865, 869 (5th

Cir. 1997).

     Vela-Torres maintains that 21 U.S.C. § 841 is unconstitutional

in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000).    As

Vela-Torres concedes, his contention is foreclosed by circuit

precedent, see United States v. Slaughter, 238 F.3d 580, 582 (5th

Cir. 2000), cert. denied, 532 U.S. 1045 (2001); instead, he raises

the issue to preserve it for Supreme Court review.

     Vela-Tores’ final contention, that the judgment inaccurately

reflects he must pay a $100 special assessment, lacks merit.   The

judgment reflects that the assessment was remitted.

                                                        AFFIRMED




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