United States v. Zamora

* 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that this opinion should not be published and is not precedent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. 03-50068
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR ZAMORA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-1158-01-DB
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Salvador Zamora pleaded guilty of conspiring to import and
importing into the United States a mixture containing 500 grams
or more of methamphetamine in violation of 21 U.S.C. §§ 952(a),
963, 960(a)(1) and 960(b)(1)(H) and of conspiring to possess and
possessing, with the intent to distribute, a mixture containing
500 grams or more of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(viii), and 846. For the first time on
appeal, Zamora argues that he was improperly sentenced under the

-- 1 of 2 --

No. 03-50068
-2-
penalty provisions in 21 U.S.C. §§ 841(b)(1)(A)(viii) and
960(b)(1)(H) because those portions of 21 U.S.C. §§ 841 and 960
were rendered facially unconstitutional by Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). Zamora concedes that his
argument is foreclosed by Fifth Circuit precedent, but seeks to
preserve the issue for further review.
In United States v. Slaughter, 238 F.3d 580, 581-82 (5th
Cir. 2000), this court held that 21 U.S.C. §§ 841(a) & (b) and
846 were not unconstitutional. The reasoning in Slaughter
applies by analogy to 21 U.S.C. § 960 because 21 U.S.C. §§ 841
and 960 are similar in structure and content. As no decision
overruling Slaughter exists, Zamora’s argument is indeed
foreclosed.
Because Zamora’s argument is foreclosed, the Government has
moved for a summary affirmance of the district court’s judgment.
The motion is GRANTED. The judgment of the district court is
AFFIRMED.
AFFIRMED; MOTION GRANTED.

-- 2 of 2 --