United States v. Trevino

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50427 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL ADAM TREVINO, also known as Michael Trevino,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CR-422-ALL -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Michael Adam Trevino appeals his sentence following his

guilty-plea conviction for possession with intent to distribute

more than 50 grams of cocaine base. Trevino concedes that his

plea agreement included a waiver-of-appeal provision, but the

Government does not seek to enforce it and the record of

rearraignment reveals that the district court did not confirm

that Trevino understood the appeal waiver. Under these

circumstances, the appeal waiver will not be enforced. See Fed.

R. Crim. P. 11(c)(6); United States v. Robinson, 187 F.3d 516,

517-18 (5th Cir. 1999).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50427 -2-

Trevino contends that 21 U.S.C. § 841(b)(1)(A), which

establishes the statutory penalty for the type and quantity of

drugs involved, is unconstitutional following Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000). Trevino concedes that his

argument is foreclosed by this court's precedent. See United

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

denied, 121 S.Ct. 2015 (2001), but he seeks to preserve the issue

for Supreme Court review.

AFFIRMED.