United States v. Patino

United States Court of Appeals
Fifth Circuit

FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40845
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

JAVIER ENRIQUE PATINO, also known
as Javier Enrique Patino-Reyes,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-272-ALL
--------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

Javier Enrique Patino appeals from his guilty-plea

conviction for possession with intent to distribute in excess of

five kilograms of cocaine. Patino contends for the first time on

appeal that 21 U.S.C. § 841(a) and (b) are facially

unconstitutional in view of Apprendi v. New Jersey, 530 U.S. 466

(2000). Patino acknowledges that his argument is foreclosed by

United States v. Slaughter, 238 F.3d 580 (5th Cir. 2000), but he

seeks to preserve his argument for further review.

*
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that this opinion should not be published and is not precedent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. 03-40845
-2-

In Apprendi, 530 U.S. at 490, the Supreme Court held that

“[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” This court has rejected the argument that

Apprendi rendered the sentencing provisions of 21 U.S.C. § 841

facially unconstitutional. See Slaughter, 238 F.3d at 582. As

Patino concedes, the court’s opinion in Slaughter forecloses his

argument. See id.

The judgment of the district court is AFFIRMED.