United States v. Gonzalez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 20, 2003

Charles R. Fulbruge III Clerk No. 02-21032 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL GONZALEZ, also known as Miguel Castaneda,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-187-3 --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Manuel Gonzalez appeals his guilty plea conviction for

conspiracy to possess with intent to distribute five kilograms

re of cocaine. Gonzalez argues that 21 U.S.C. §§ 841 (a) and (b)

were rendered facially unconstitutional by Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000). Gonzalez concedes that his

argument is foreclosed by our opinion in United States v.

Slaughter, 238 F.3d 580, 581-82 (5th Cir. 2000)(revised opinion),

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-21032 -2-

cert. denied, 532 U.S. 1045 (2001), which rejected a broad

Apprendi-based attack on the constitutionality of that statute.

He raises the issue only to preserve it for Supreme Court review.

A panel of this court cannot overrule a prior panel’s decision in

the absence of an intervening contrary or superseding decision by

this court sitting en banc or by the United States Supreme Court.

Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.

1999). No such decision overruling Slaughter exists.

Accordingly, Gonzalez’s argument is foreclosed.

AFFIRMED.