United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-50468
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES FLEMING,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-386-ALL
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Charles Fleming appeals his guilty plea conviction for
possession of cocaine base. Fleming argues that 21 U.S.C.
§ 841(b)(1)(B) was rendered facially unconstitutional by Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000). Fleming 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), which rejected a broad Apprendi-based
*
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that this opinion should not be published and is not precedent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. 03-50468
-2-
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, Fleming’s argument is indeed foreclosed. The
judgment of the district court 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.