United States v. Prado-Martinez

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40251
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR PRADO-MARTINEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-326-2
--------------------
Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Victor Prado-Martinez (Prado) appeals from his guilty-plea
conviction for conspiracy to possess with intent to distribute
more than 1,000 kilograms of marijuana. Prado contends for the
first time on appeal that 21 U.S.C. § 841(a) and (b) are facially
unconstitutional in view of Apprendi v. New Jersey, 530 U.S. 466
(2000). Prado acknowledges that his argument is foreclosed by
United States v. Slaughter, 238 F.3d 580 (5th Cir. 2000), but he
seeks to preserve his argument for further review.
United States Court of Appeals
Fifth Circuit
F I L E D
August 18, 2004
Charles R. Fulbruge III
Clerk

-- 1 of 2 --

No. 04-40251
-2-
In Apprendi, 530 U.S. at 490, the Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” This court has rejected the argument that
Apprendi rendered the sentencing provisions of 21 U.S.C. § 841
facially unconstitutional. See Slaughter, 238 F.3d at 582. As
Prado concedes, the court’s opinion in Slaughter forecloses his
argument. See id.
The judgment of the district court is AFFIRMED.

-- 2 of 2 --