United States v. Dempski

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 9, 2003
• Docket: 03-40508
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 10, 2003

Charles R. Fulbruge III Clerk No. 03-40508 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL RICHARD DEMPSKI, III,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-96-CR-271-1 --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Michael Richard Dempski, III, appeals the revocation of

supervised release on his conviction for possession with intent

to distribute marijuana. He 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, see United States v.

Longoria, 298 F.3d 367, 372 (5th Cir. 2002)(en banc), Dempski may

not present this claim in an appeal following the revocation of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40508 -2-

supervised release. See United States v. Teran, 98 F.3d 831, 833

n.1 (5th Cir. 1996); see also United States v. Moody, 277 F.3d

719, 720-21 (5th Cir. 2001). Moreover, as Dempski concedes, his

Apprendi argument is foreclosed by United States v. Slaughter,

238 F.3d 580, 582 (5th Cir. 2000).

Accordingly, the judgment of the district court is

AFFIRMED.