United States v. Cortez-Vasquez

Fifth Circuit

United States v. Cortez-Vasquez

101 F. App'x 544

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 24, 2004

Docket04-40023

StatusUnpublished

Cited by1 cases

This text of 101 F. App'x 544 (United States v. Cortez-Vasquez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Cortez-Vasquez, 101 F. App'x 544 (5th Cir. 2004).

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Opinion

PER CURIAM: *

Jose Angel Cortez-Vasquez appeals his guilty plea conviction for importation of more than 5 kilograms of cocaine. Cortez-Vasquez argues that the Government was obliged to, but did not, establish as a factual basis for his guilty plea that he *545 knowingly possessed the particular type of controlled substance at issue in this case. He concedes that this argument is foreclosed by our opinion in United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir.), cert. denied, 538 U.S. 1068, 123 S.Ct. 2241, 155 L.Ed.2d 1126 (2003), which held that knowledge of the drug type and quantity is not an element of the offense. Cortez-Vasquez also argues that 21 U.S.C. §§ 952 and 960 were rendered facially unconstitutional by Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He concedes that this argument is foreclosed by our opinion in United States v. Slaughter, 238 F.3d 580, 581-82 (5th Cir.2000), which rejected a broad Apprendi-based attack on the constitutionality of 21 U.S.C. § 841. He raises these issues only to preserve them 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 Gamez-Gonzalez and Slaughter exist. Accordingly, Cortez-Vasquez’s arguments are 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.

*

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.

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PER CURIAM: *

Jose Angel Cortez-Vasquez appeals his guilty plea conviction for importation of more than 5 kilograms of cocaine. Cortez-Vasquez argues that the Government was obliged to, but did not, establish as a factual basis for his guilty plea that he *545 knowingly possessed the particular type of controlled substance at issue in this case. He concedes that this argument is foreclosed by our opinion in United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir.), cert. denied, 538 U.S. 1068, 123 S.Ct. 2241, 155 L.Ed.2d 1126 (2003), which held that knowledge of the drug type and quantity is not an element of the offense. Cortez-Vasquez also argues that 21 U.S.C. §§ 952 and 960 were rendered facially unconstitutional by Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He concedes that this argument is foreclosed by our opinion in United States v. Slaughter, 238 F.3d 580, 581-82 (5th Cir.2000), which rejected a broad Apprendi-based attack on the constitutionality of 21 U.S.C. § 841. He raises these issues only to preserve them 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 Gamez-Gonzalez and Slaughter exist. Accordingly, Cortez-Vasquez’s arguments are 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.

*

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.

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