United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 9, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40015
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO HERRERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-00-CR-65-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Ernesto Herrera was convicted of possession with intent to
distribute 1,230 kilograms of marijuana and was sentenced to 120
months of imprisonment and a five-year term of supervised
release. Finding that counsel had rendered ineffective
assistance by failing to file a direct appeal on Herrera’s
behalf, the district court granted Herrera leave to file an out-
of-time appeal.
*
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that this opinion should not be published and is not precedent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. 03-40015
-2-
In Herrera’s sole issue on appeal, he argues that 21 U.S.C.
§ 841 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. Herrera
concedes that his argument is foreclosed by United States v.
Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), but he raises the
issue in order to preserve it for possible Supreme Court review.
Herrera also requests that his case be remanded to the
district court for an evidentiary hearing on his ineffective-
assistance claims. Those claims were raised by Herrera in a
28 U.S.C. § 2255 proceeding, but review of those claims was
previously pretermitted by this court. Herrera has failed,
however, to squarely present those claims on direct appeal
and they are thus not properly before this court. Nor is the
record adequately developed so as to permit this court to address
any such claims in this appeal. See United States v. Haese,
162 F.3d 359, 363-64 (5th Cir 1998).
AFFIRMED.