82 FAPPX 927 - United States v. Fleming

                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 December 10, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-50468
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

CHARLES FLEMING,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. SA-01-CR-386-ALL
                       --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Charles Fleming appeals his guilty plea conviction for

possession of cocaine base.   Fleming argues that

21 U.S.C. § 841

(b)(1)(B) was rendered facially unconstitutional by Apprendi

v. New Jersey,

530 U.S. 466, 490

 (2000).      Fleming concedes that

his argument is foreclosed by our opinion in United States v.

Slaughter,

238 F.3d 580

, 581-82 (5th Cir. 2000), cert. denied,

532 U.S. 1045

 (2001), which rejected a broad Apprendi-based



     *
        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that this opinion should not be published and is not precedent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. 03-50468
                                  -2-

attack on the 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, Fleming’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.