United States v. Tapia

* 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that this opinion should not be published and is not precedent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. 02-51145
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO TAPIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-00-CR-569-2
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Arturo Tapia appeals his guilty plea conviction for
possession with intent to distribute more than 500 grams of
methamphetamine. Tapia argues that 21 U.S.C. §§ 841 (a) and (b)
were rendered facially unconstitutional by Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). Tapia concedes that his
argument is foreclosed by our opinion in United States v.
Slaughter, 238 F.3d 580, 581-82 (5th Cir. 2000)(revised opinion),
cert. denied, 532 U.S. 1045 (2001), which rejected a broad

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No. 02-51145
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Apprendi-based 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, Tapia’s argument is foreclosed.
Appellant has moved for permission to file a pro se
supplemental brief. The motion is DENIED.
AFFIRMED.

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