United States v. Ramirez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 24, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-40472 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FELIPE DE JESUS RAMIREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-1059-ALL --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Felipe de Jesus Ramirez 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. Ramirez concedes that

his arguments are foreclosed by United States v. Slaughter,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40472 -2-

238 F.3d 580, 582 (5th Cir. 2000) and Almendarez-Torres v. United

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

Apprendi held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.

This court has specifically rejected the argument that Apprendi

rendered 21 U.S.C. § 841 facially unconstitutional. See

Slaughter, 238 F.3d at 582. Accordingly, Ramirez’ challenge to

the constitutionality of 21 U.S.C. § 841 is without merit.

Furthermore, Apprendi did not overrule Almendarez-Torres.

See Apprendi, 530 U.S. at 490; see also United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000). This court, therefore, must

follow Almendarez-Torres “unless and until the Supreme Court

itself determines to overrule it.” Dabeit, 231 F.3d at 984

(internal quotation and citation omitted). Accordingly, Ramirez’

challenge to the constitutionality of 21 U.S.C. §§ 841(b) and 851

is without merit.

AFFIRMED.