United States v. Lopez

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 24, 2003

Charles R. Fulbruge III Clerk No. 02-40107 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICENTE LOPEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-877-ALL --------------------

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Vicente Lopez appeals his guilty-plea conviction and

sentence for possession with intent to distribute in excess of

100 kilograms of marijuana. He argues that: 1) 21 U.S.C. § 841

is facially unconstitutional in light of Apprendi v. New Jersey,

530 U.S. 466 (2000); and 2) 21 U.S.C. §§ 841(b) and 851 are

unconstitutional in light of Apprendi. Lopez concedes that his

arguments are foreclosed by United States v. Slaughter, 238 F.3d

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40107 -2-

580, 582 (5th Cir. 2000) and Almendarez-Torres v. United States,

523 U.S. 224, 235-47 (1998), respectively.

Lopez also argues that his sentence should be vacated and

that his case should be remanded for resentencing because the

district court failed to inform him, as required by 21 U.S.C.

§ 851(b), that Lopez had to collaterally challenge the prior

conviction used to enhance his sentence prior to the imposition

of sentence in this case or the collateral challenge to that

prior conviction would be waived. Lopez has not shown reversible

plain error with respect to this issue. See United States

v. Cotton, 535 U.S. 625, 631-32 (2002); United States v. Majors,

328 F.3d 791, 796-97 (5th Cir. 2003); United States v. Garcia,

954 F.2d 273, 277-78 (5th Cir. 1992); United States v. Fragoso,

978 F.2d 896, 902-03 (5th Cir. 1992).

AFFIRMED.