United States v. Real

* 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this opinion should not be published and is not precedent except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. 04-20114
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENITO MANCILLA REAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CR-426-ALL
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Benito Mancilla Real appeals from his conviction of
possession with intent to distribute methamphetamine. He
contends for the first time on appeal that 21 U.S.C. § 841 is
unconstitutional because Congress and the federal courts intended
for drug amounts to be a sentencing factor and not elements of
separate offenses, a scheme rendered unconstitutional by Apprendi
v. New Jersey, 530 U.S. 466 (2000). Real concedes that his
argument is foreclosed by the caselaw of this court, but he seeks
United States Court of Appeals
Fifth Circuit
F I L E D
August 18, 2004
Charles R. Fulbruge III
Clerk

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No. 04-20114
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to preserve the issue for further review. Real further argues
that his Apprendi contention was not waived by the waiver
provision in his plea agreement.
We will address Real’s Apprendi contention on the merits.
See United States v. Longoria, 298 F.3d 367, 370-73 (5th Cir.)(en
banc), cert. denied, 537 U.S. 1038 (2002). Apprendi did not
render 21 U.S.C. § 841 facially unconstitutional. United States
v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000). Real has failed
to show error, plain or otherwise, regarding the
constitutionality of 21 U.S.C. § 841. See FED. R. CRIM. P. 52(b).
AFFIRMED.

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