United States v. Lozoya

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. 03-50746
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OCTAVIO LOZOYA, JR.,

Defendant-Appellant.

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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-1853-1-RF
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Octavio Lozoya, Jr., appeals his guilty plea conviction for

conspiracy to harbor an illegal alien with death resulting and

harboring an illegal alien with death resulting. Lozoya argues

that the appeal-waiver provision in his plea agreement should not

be enforced to bar his challenge to his consecutive sentence. He

concedes that his argument is foreclosed by our opinion in United

States v. Melancon, 972 F.2d 566 (5th Cir. 1992), and its

*
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that this opinion should not be published and is not precedent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. 03-50746
-2-

progeny. He raises the issue to preserve it for possible 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 Melancon exists.

Accordingly, Lozoya’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.