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. 02-41786
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO CUELLAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-985-ALL
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Fernando Cuellar appeals his guilty plea conviction for
possession with intent to distribute over 100 kilograms of
marijuana. Cuellar argues that 21 U.S.C. §§ 841 (a) and (b) were
rendered facially unconstitutional by Apprendi v. New Jersey,
530 U.S. 466, 490 (2000). Cuellar concedes that his argument is
foreclosed by our opinion in United States v. Slaughter, 238 F.3d
580, 581-82 (5th Cir. 2000), cert. denied, 532 U.S. 1045 (2001),
*
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that this opinion should not be published and is not precedent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. 02-41786
-2-
which rejected a broad Apprendi-based attack on the
constitutionality of that statute. 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, Cuellar’s argument is foreclosed.
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.