United States v. Martinez-Alcaraz

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 13, 2001
• Docket: 01-50763
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50763 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO MARTINEZ-ALCARAZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-1970-ALL-H -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges

PER CURIAM:*

Sergio Martinez-Alcaraz (Martinez) appeals his conviction

and sentence following a guilty plea to importing 100 kilograms

or more of marijuana into the United States, a violation of 21

U.S.C. § 952(a). Martinez argues pursuant to Apprendi v. New

Jersey, 530 U.S. 466 (2000) that the statute under which he was

sentenced, 21 U.S.C. § 960, is unconstitutional on its face.

Martinez did not raise this objection in the district court,

and, therefore, we review for plain error only. See United

States v. Navejar, 963 F.2d 732, 734 (5th Cir. 1992). Martinez

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50763 -2-

concedes that this issue is foreclosed by United States v.

Slaughter, 238 F.3d 580, 582 (2000), cert. denied, 121 S. Ct.

2015 (2001), which held that Apprendi did not render analogous

statutes under the Controlled Substances Act facially

unconstitutional. 238 F.3d at 582. This court is bound by its

precedent absent an intervening Supreme Court decision or a

subsequent en banc decision. See United States v. Short, 181

F.3d 620, 624 (5th Cir. 1999), cert. denied, 528 U.S. 1091

(2000); United States v. Mathena, 23 F.3d 87, 91 (5th Cir. 1994).

AFFIRMED.