United States Court of Appeals
Fifth Circuit
F I L E D
April 23, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-41394
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRUZ YANEZ-BENAVIDES, also known as
Gabriela Ramirez-Montoya,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-107-1
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Cruz Yanez-Benavides appeals her jury-trial conviction
and sentence for importing and possessing with intent to
distribute more than 500 grams of cocaine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B), 960(b)(1)(A), (b)(2)(B). She
argues that 21 U.S.C. §§ 841(a), (b), 846, 952, 960(a) and (b),
are facially unconstitutional because, in enacting these
statutes, Congress intended to make drug quantity a sentencing
*
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that this opinion should not be published and is not precedent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. 02-41394
-2-
enhancement provable to a judge by a preponderance of the
evidence and the courts may not construe these statutes in
contravention of this congressional intent in order to conform
the statutes with the Supreme Court’s holding in Apprendi v. New
Jersey, 530 U.S. 466 (2000).
Yanez acknowledges that this argument is foreclosed by this
court’s precedent and raises the argument solely to preserve it
for possible Supreme Court review. See United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532
U.S. 1045 (2001).
Accordingly, the district court’s judgment 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.