United States v. Cuellar

78 F. App'x 437

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 22, 2003
• Docket: 02-41786
• Status: Unpublished

Opinion

PER CURIAM. *

Fernando Cuellar appeals his guilty plea conviction for possession with intent to distribute over 100 kilograms of marijuana. Cuellar argues that 21 U.S.C. §§ 841(a) and (b) were rendered facially unconstitutional by Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Cuellar concedes that his argument is foreclosed by our opinion in United States v. Slaughter; 238 F.3d 580, 581-82 (5th Cir.2000), cert. denied, 532 U.S. 1045, 121 S.Ct. 2015, 149 L.Ed.2d 1015 (2001), which rejected a broad Ap prendi-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, Cuellar’s argument is foreclosed.

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.