United States v. Mason

* 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that this opinion should not be published and is not precedent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. 02-10338
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORCENES MASON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CR-157-1-A
--------------------
October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Orcenes Mason appeals his guilty plea conviction and
sentence for possessing with the intent to distribute more than
five grams of a mixture and substance containing a detectable
amount of cocaine base. Mason argues that 21 U.S.C. § 841 was
rendered facially unconstitutional by Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). Mason concedes that his argument is
foreclosed by our opinion in United States v. Slaughter, 238 F.3d

-- 1 of 2 --

No. 02-10338
-2-
580, 581-82 (5th Cir. 2000)(revised opinion), cert. denied, 532
U.S. 1045 (2001), which rejected a broad 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, Mason’s argument is indeed foreclosed. The judgment
of the district court is AFFIRMED.
The Government has filed a motion for leave to forego the
filing of an appellee’s brief. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.

-- 2 of 2 --