United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41235
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL MONTES DE OCA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-484-1
--------------------
Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rafael Montes de Oca appeals his guilty plea conviction for
possession with the intent to distribute more than 5 grams of
cocaine base (crack cocaine). He argues that the sentencing
provision of 21 U.S.C. § 841(b)(1)(B) is unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Montes de Oca concedes that his argument is foreclosed by our
opinion in United States v. Slaughter, 238 F.3d 580, 581-82 (5th
*
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that this opinion should not be published and is not precedent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. 03-41235
-2-
Cir. 2000). 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, Montes de Oca’s argument is foreclosed, and 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.