United States v. Alaniz

101 F. App'x 452

Opinion

United States Court of Appeals Fifth Circuit

FILED IN THE UNITED STATES COURT OF APPEALS June 23, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-41071 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERMANEGILDO ALANIZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-02-CR-340-5 --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Hermanegildo Alaniz appeals his guilty plea conviction for

conspiracy to possess more than 100 kilograms of marijuana.

Alaniz argues that 21 U.S.C. §§ 841, 952, and 960 were rendered

facially unconstitutional by Apprendi v. New Jersey, 530 U.S.

466, 490 (2000). Alaniz concedes that his argument is foreclosed

by our opinion in United States v. Slaughter, 238 F.3d 580, 581-

82 (5th Cir. 2000), and he raises the issue to preserve it for

further review.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41071 -2-

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, Alaniz’s argument is indeed foreclosed. The

judgment of the district court is AFFIRMED.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. In its motion, the Government asks

that an appellee’s brief not be required. The motion is GRANTED.

AFFIRMED; MOTION GRANTED.