United States v. Kocevar

* 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this opinion should not be published and is not precedent except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
November 9, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41657
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY DALE KOCEVAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-185
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Larry Dale Kocevar pleaded guilty to possession with intent
to distribute eleven kilograms of marijuana and was sentenced to
24 months of imprisonment, three years of supervised release, a
$50 fine, and a $100 special assessment. Kocevar argues for the
first time on appeal that the provisions found at 21 U.S.C.
§ 841(a) and (b) are unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466 (2000). Kocevar’s appeal waiver, contained
in his plea agreement, does not bar review of this issue because

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No. 04-41657
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he did not waive his right to appeal the conviction.
Nevertheless, as he concedes, this issue is foreclosed. See
United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).
Therefore, the judgment of the district court is AFFIRMED.

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