United States v. Santana

73 F. App'x 65

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. 02-51271 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS ALBERTO SANTANA, also known as Victor Manuel Vivas,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-02-CR-41-ALL --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Luis Alberto Santana appeals the sentence imposed following

his guilty plea conviction of attempting to possess with the

intent to distribute 500 grams or more of cocaine, in violation

of 21 U.S.C. §§ 841 and 846. Santana contends that he was

improperly sentenced under 21 U.S.C. § 841(b)(1)(B) because that

portion of 21 U.S.C. § 841 was rendered unconstitutional by

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-51271 -2- concedes that his argument is foreclosed by our opinion in United

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

rejected a broad Apprendi-based attack on the constitutionality

of 21 U.S.C. § 841. 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, Santana’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. The Government asks that an

appellee’s brief not be required. The motion is GRANTED.

AFFIRMED; MOTION GRANTED.