United States v. Mendoza-Ochoa

* 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that this opinion should not be published and is not precedent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
April 24, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40577
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR MANUEL MENDOZA-OCHOA, also known as
Tomas Claro-Alfaro,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-754-1
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Victor Manuel Mendoza-Ochoa appeals from his guilty-plea
conviction of possession with intent to distribute cocaine. He
contends, for the first time on appeal, that 21 U.S.C. § 841 was
rendered unconstitutional by Apprendi v. New Jersey, 530 U.S. 466
(2000), because drug types and quantities should be treated as
elements of the offense of possession with intent to distribute.
Mendoza concedes that his argument runs counter to this court’s

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No. 02-40577
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caselaw; he raises the issue to preserve it for Supreme Court
review.
Because Mendoza did not raise his Apprendi issue in the
district court, his contention is reviewed under the plain-error
standard. United States v. Vasquez, 298 F.3d 354, 356 (5th
Cir.), cert. denied, 123 S. Ct. 546 (2002). Apprendi did not
render 21 U.S.C. § 841 facially unconstitutional. Id. at 360.
Mendoza has not shown error, plain or otherwise.
AFFIRMED.

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