United States v. Stewart

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 17, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-21061 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GARLAND STEWART,

Defendant-Appellant.

-------------------- Appeals from the United States District Court for the Southern District of Texas USDC No. H-01-CR-730-ALL --------------------

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Garland Stewart appeals the revocation of supervised

release on his convictions for conspiring to distribute cocaine and

for distributing cocaine. He seeks to challenge the

constitutionality of 21 U.S.C. § 841(a) and (b) in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Because a challenge

under Apprendi is not jurisdictional, he may not present this claim

in an appeal following the revocation of supervised release. See

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. United States v. Moody, 277 F.3d 719, 720-21 (5th Cir. 2001).

Moreover, as Stewart concedes, his Apprendi argument is foreclosed

by United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).

The judgment of the district court is AFFIRMED.