United States v. Montes de Oca

101 F. App'x 472

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. 03-41235 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAFAEL MONTES DE OCA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-484-1 --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Rafael Montes de Oca appeals his guilty plea conviction for

possession with the intent to distribute more than 5 grams of

cocaine base (crack cocaine). He argues that the sentencing

provision of 21 U.S.C. § 841(b)(1)(B) is unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

Montes de Oca concedes that his argument is foreclosed by our

opinion in United States v. Slaughter, 238 F.3d 580, 581-82 (5th

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41235 -2-

Cir. 2000). 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, Montes de Oca’s argument is foreclosed, and 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.