United States v. Tapia

72 F. App'x 194

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. 02-51145 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTURO TAPIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-00-CR-569-2 --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Arturo Tapia appeals his guilty plea conviction for

possession with intent to distribute more than 500 grams of

methamphetamine. Tapia argues that 21 U.S.C. §§ 841 (a) and (b)

were rendered facially unconstitutional by Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000). Tapia 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 U.S. 1045 (2001), which rejected a broad

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-51145 -2-

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, Tapia’s argument is foreclosed.

Appellant has moved for permission to file a pro se

supplemental brief. The motion is DENIED.

AFFIRMED.