United States v. Santana

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 20, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-51271
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS ALBERTO SANTANA,
also known as Victor Manuel Vivas,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CR-41-ALL
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Luis Alberto Santana appeals the sentence imposed following
his guilty plea conviction of attempting to possess with the
intent to distribute 500 grams or more of cocaine, in violation
of 21 U.S.C. §§ 841 and 846. Santana contends that he was
improperly sentenced under 21 U.S.C. § 841(b)(1)(B) because that
portion of 21 U.S.C. § 841 was rendered unconstitutional by
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Santana

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No. 02-51271
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concedes that his 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 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, Santana’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. The Government asks that an
appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.

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