United States v. Astorga-Ramirez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 25, 2003

Charles R. Fulbruge III Clerk No. 02-41221 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL ASTORGA-RAMIREZ, also known as Gabriel Astorga-Ramirez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-98-CR-1076-ALL --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Gabriel Astorga-Ramirez (“Astorga”) appeals the revocation

of supervised release on his conviction for possession with the

intent to distribute marihuana. Astorga seeks to challenge the

constitutionality of 21 U.S.C. § 841(a) and (b) in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Because a challenge

under Apprendi is not jurisdictional, he may not present this

claim in an appeal following the revocation of supervised

release. See United States v. Moody, 277 F.3d 719, 720-21

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41221 -2-

(5th Cir. 2001). Moreover, as Astorga concedes, his Apprendi

argument is foreclosed by United States v. Slaughter, 238 F.3d

580, 582 (5th Cir. 2000). The judgment of the district court is

AFFIRMED.