United States v. Diaz

101 F. App'x 512

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. 03-41752 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALBERTO DIAZ, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-586-1 --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Alberto Diaz, Jr., appeals his guilty plea conviction for

importation of less than 50 kilograms of marijuana. Diaz argues

that 21 U.S.C. §§ 952 and 960 were rendered facially

unconstitutional by Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). Diaz concedes that his 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41752 -2-

constitutionality of 21 U.S.C. § 841. 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, Diaz’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.