United States v. Dempski

* 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that this opinion should not be published and is not precedent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
December 10, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40508
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL RICHARD DEMPSKI, III,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-96-CR-271-1
--------------------
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Michael Richard Dempski, III, appeals the revocation of
supervised release on his conviction for possession with intent
to distribute marijuana. He seeks to challenge the
constitutionality of 21 U.S.C. § 841(a) and (b) in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Because a challenge
under Apprendi is not jurisdictional, see United States v.
Longoria, 298 F.3d 367, 372 (5th Cir. 2002)(en banc), Dempski may
not present this claim in an appeal following the revocation of

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No. 03-40508
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supervised release. See United States v. Teran, 98 F.3d 831, 833
n.1 (5th Cir. 1996); see also United States v. Moody, 277 F.3d
719, 720-21 (5th Cir. 2001). Moreover, as Dempski concedes, his
Apprendi argument is foreclosed by United States v. Slaughter,
238 F.3d 580, 582 (5th Cir. 2000).
Accordingly, the judgment of the district court is
AFFIRMED.

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