United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-10973
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MACHEO HILL, also known as Mace;
ROQUE RANGEL, JR., also known as Rock,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:02-CR-3-9
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Macheo Hill and Roque Rangel, Jr., were convicted of,
inter alia, conspiracy and possession with intent to distribute
narcotics in violation of 21 U.S.C. § 841(b). Hill was additionally
convicted of being a felon in possession of ammunition in violation
of 18 U.S.C. § 922(g)(1). Hill was sentenced to an aggregate
sentence of life and an aggregate 10-year supervised release
term. Rangel was also sentenced to an aggregate sentence of
*
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that this opinion should not be published and is not precedent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. 02-10973
-2-
life, but his supervised release term was an aggregate of only
five years. Both Hill and Rangel filed timely notices of appeal.
The Government’s motion seeking leave to forego filing a brief in
this case is GRANTED.
Both appellants argue that 21 U.S.C. § 841(a) and (b) is
facially unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), because the statute’s structure treats drug
types and quantities as sentencing factors. Hill additionally
asserts that the district court erred by enhancing his sentence
under 21 U.S.C. §§ 841(b) and 851 based on his prior felony drug
conviction because the fact of that conviction was not set forth
in his indictment nor proved to a jury beyond a reasonable doubt.
The appellants concede that their arguments are foreclosed by
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000),
and Almendarez-Torres v. United States, 523 U.S. 224, 235-47
(1998), respectively.
Rangel argues that the district court deprived him of his
right to due process in violation of Apprendi, by finding drug
quantities by a preponderance of the evidence. However, Rangel
concedes that this argument is foreclosed by United States
v. Keith, 230 F.3d 784, 786-87 (5th Cir. 2000).
Hill argues that there was insufficient evidence to support
the interstate-commerce element of his conviction under 18 U.S.C.
§ 922(g) and that the statute is unconstitutional, both facially
and as applied in his case. Hill concedes that these arguments
No. 02-10973
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are foreclosed by United States v. Daugherty, 264 F.3d 513, 518
(5th Cir. 2001) (firearm case), cert. denied, 534 U.S. 1150
(2002), and United States v. Rawls, 85 F.3d 240 (5th Cir. 1996),
respectively.
Each of the issues raised by the appellants has been raised
for the purpose of preserving those issues for possible further
review. Accordingly, the judgment of the district court with
respect to each of the appellants is AFFIRMED.