United States v. Sandoval-Alvarez

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 28, 2006

Charles R. Fulbruge III Clerk No. 05-20479 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE MAURO SANDOVAL-ALVAREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-492-2 --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Jose Mauro Sandoval-Alvarez appeals his conviction for

conspiracy to possess with intent to distribute cocaine. For the

first time on appeal, Sandoval-Alvarez argues that 21 U.S.C.

§ 841, the statute of conviction, is unconstitutional under

Apprendi v. New Jersey, 530 U.S. 466 (2000). The Government

argues that the waiver provision in Sandoval-Alvarez’s plea

agreement precludes his attack on the constitutionality of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-20479 -2-

§ 841. We assume, arguendo only, that the waiver does not bar

the constitutional challenge to 21 U.S.C. § 841.

Sandoval-Alvarez acknowledges that the constitutional

challenge is foreclosed by United States v. Slaughter, 238 F.3d

580, 582 (5th Cir. 2000), and that he is raising the issue to

preserve it for Supreme Court review.

AFFIRMED.