United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-40688
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO CESAR GARCIA-REYES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-48-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Julio Cesar Garcia-Reyes appeals his guilty plea conviction
for possession of more than 100 kilograms of marijuana. Garcia-
Reyes argues that 21 U.S.C. § 841 was rendered facially
unconstitutional by Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). Garcia-Reyes concedes that his argument is foreclosed by
our opinion in United States v. Slaughter, 238 F.3d 580, 581-82
(5th Cir. 2000), which rejected a broad Apprendi-based attack on
*
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that this opinion should not be published and is not precedent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. 03-40688
-2-
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, Garcia-Reyes’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.