IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40822
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS JAVIER SUAREZ-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-97-CR-307-1
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Luis Javier Suarez-Garcia appeals his guilty plea conviction
and sentence for conspiring to possess with the intent to
distribute one kilogram or more of heroin. Suarez-Garcia argues
that 21 U.S.C. §§ 841 and 846, the statutes under which he was
convicted and sentenced, were rendered facially unconstitutional
by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Suarez-
Garcia concedes that his argument is foreclosed by our opinion in
*
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that this opinion should not be published and is not precedent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. 01-40822
-2-
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 Apprendi-based attack on the constitutionality
of those statutes. 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, Suarez-Garcia’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.