United States v. Mills

71 F. App'x 405

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 20, 2003

Charles R. Fulbruge III Clerk No. 02-21237 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANDRE MILLS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-244-1 --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Andre Mills appeals his guilty plea conviction for aiding

and abetting the possession of more than five grams of cocaine

base with intent to distribute. Mills argues that 21 U.S.C.

§§ 841 (a) and (b) were rendered facially unconstitutional by

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Mills concedes

that his argument is foreclosed by our opinion in United States

v. Slaughter, 238 F.3d 580, 581-82 (5th Cir. 2000) (revised

opinion), cert. denied, 532 U.S. 1045 (2001), which rejected a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-21237 -2-

broad Apprendi-based attack on the constitutionality of that

statute. 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, Mills’s argument is foreclosed.

AFFIRMED.