United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-20479
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MAURO SANDOVAL-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-492-2
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Jose Mauro Sandoval-Alvarez appeals his conviction for
conspiracy to possess with intent to distribute cocaine. For the
first time on appeal, Sandoval-Alvarez argues that 21 U.S.C.
§ 841, the statute of conviction, is unconstitutional under
Apprendi v. New Jersey, 530 U.S. 466 (2000). The Government
argues that the waiver provision in Sandoval-Alvarez’s plea
agreement precludes his attack on the constitutionality of
*
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this opinion should not be published and is not precedent except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. 05-20479
-2-
§ 841. We assume, arguendo only, that the waiver does not bar
the constitutional challenge to 21 U.S.C. § 841.
Sandoval-Alvarez acknowledges that the constitutional
challenge is foreclosed by United States v. Slaughter, 238 F.3d
580, 582 (5th Cir. 2000), and that he is raising the issue to
preserve it for Supreme Court review.
AFFIRMED.