United States v. Ruiz

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40617 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR RUIZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-01-CR-191-1 -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Hector Ruiz appeals his guilty plea conviction and sentence

for possessing with the intent to distribute more than 50 grams

of methamphetamine. Ruiz argues that 21 U.S.C. § 841 was

rendered facially unconstitutional by Apprendi v. New Jersey, 530

U.S. 466, 490 (2000). Ruiz 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40617 -2-

U.S. 1045 (2001), which rejected a 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, Ruiz’s argument is indeed foreclosed. 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.