United States v. Simms

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40488 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH SIMMS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-1109-ALL -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Joseph Simms appeals his guilty plea conviction and sentence

for possessing with the intent to distribute less than 50

kilograms of marijuana. Simms argues that 21 U.S.C. § 841, the

statute under which he was convicted and sentenced, was rendered

facially unconstitutional by Apprendi v. New Jersey, 530 U.S.

466, 490 (2000). Simms concedes that his argument is foreclosed

by our opinion in United States v. Slaughter, 238 F.3d 580, 581-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40488 -2-

82 (5th Cir. 2000)(revised opinion), cert. denied, 532 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, Simms’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.