United States v. Cortez-Vasquez

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. 04-40023
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ANGEL CORTEZ-VASQUEZ,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-213-ALL
--------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Angel Cortez-Vasquez appeals his guilty plea conviction

for importation of more than 5 kilograms of cocaine. Cortez-

Vasquez argues that the Government was obliged to, but did not,

establish as a factual basis for his guilty plea that he

knowingly possessed the particular type of controlled substance

at issue in this case. He concedes that this argument is

foreclosed by our opinion in United States v. Gamez-Gonzalez, 319

F.3d 695, 700 (5th Cir.), cert. denied, 123 S. Ct. 2241 (2003),

*
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that this opinion should not be published and is not precedent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. 04-40023
-2-

which held that knowledge of the drug type and quantity is not an

element of the offense. Cortez-Vasquez also argues that 21

U.S.C. §§ 952 and 960 were rendered facially unconstitutional by

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He concedes

that this 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 the constitutionality

of 21 U.S.C. § 841. He raises these issues only to preserve them

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 Gamez-Gonzalez and

Slaughter exist. Accordingly, Cortez-Vasquez’s arguments are

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.