72 FAPPX 952 - United States v. Jimenez

                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 20, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-41793
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DOMINGO JIMENEZ,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. C-02-CR-221-1
                       --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Domingo Jimenez appeals his guilty plea conviction for

possession of less than 100 grams of heroin.   Jimenez argues

that

21 U.S.C. §§ 841

 (a) and (b) were rendered facially

unconstitutional by Apprendi v. New Jersey,

530 U.S. 466, 490


(2000).   Jimenez concedes that his argument is foreclosed by our

opinion in United States v. Slaughter,

238 F.3d 580

, 581-82 (5th

Cir. 2000)(revised opinion), cert. denied,

532 U.S. 1045

 (2001),

which rejected a broad Apprendi-based attack on the

     *
        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that this opinion should not be published and is not precedent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. 02-41793
                               -2-

constitutionality of that statute.   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,

Jimenez’s argument is foreclosed.

     AFFIRMED.