United States v. Medrano

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 25, 2003

Charles R. Fulbruge III Clerk No. 02-41661 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOE ERLINDO MEDRANO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-89-CR-89-1 --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

This appeal by Joe Erlindo Medrano is from a judgment

revoking his supervised release and resentencing. We AFFIRM.

Although Medrano’s notice of appeal states he is appealing

the revocation judgment and sentence, he also challenges the

validity of his underlying conviction of conspiracy to possess

and distribute marijuana. This challenge is based on his

contention that the statute of conviction, 21 U.S.C. § 841, is

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41661 -2-

530 U.S. 466 (2000). However, he seeks only to preserve the

claim for further review.

Medrano may not use this appeal from his new sentence for

the supervised-release violation as a vehicle to challenge the

language of the indictment or the drug quantity used in

calculating his original sentence. United States v. Moody,

277 F.3d 719, 720 (5th Cir. 2001). Accordingly, the district

court’s judgment is AFFIRMED.