United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2003
Charles R. Fulbruge III
No. 02-11154 Clerk
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY D. STEPTOE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-57-1
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Anthony D. Steptoe appeals his guilty-plea conviction and
sentence for possessing with the intent to distribute cocaine
base and possessing a controlled substance within 1000 feet of a
playground. Steptoe argues that 21 U.S.C. § 841 was rendered
facially unconstitutional by Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). Steptoe also argues that the district court
improperly enhanced his sentence under 21 U.S.C. §§ 841(b)(1)(C)
and 851(c) based on prior convictions that were not alleged in
his indictment. Steptoe concedes that his arguments are
*
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that this opinion should not be published and is not precedent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. 02-11154
-2-
foreclosed. He raises the issues to preserve them for possible
Supreme Court review.
In Apprendi, the Supreme Court held “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” 530 U.S. at
490. This court has rejected the argument that Apprendi rendered
21 U.S.C. § 841 facially unconstitutional. United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000). Steptoe’s
challenge to the constitutionality of that statute is without
merit.
In Almendarez-Torres v. United States, 523 U.S. 224, 228-47
(1998), the Supreme Court held that sentencing enhancements based
on prior convictions need not be alleged in an indictment and
proved beyond a reasonable doubt. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 490; United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). The district court
did not err by enhancing Steptoe’s sentence under 21 U.S.C.
§§ 841(b) and 851(c) based on his prior convictions. See United
States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000).
Because Steptoe’s arguments are foreclosed, the Government
has filed a motion requesting leave to forego filing an
appellee’s brief. The motion is GRANTED. The judgment of the
district court is affirmed.
AFFIRMED; MOTION GRANTED.