United States v. Mitchell

* 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that this opinion should not be published and is not precedent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. 01-31242
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO L. MITCHELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 00-CR-30026-3
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June 18, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Antonio L. Mitchell appeals his conviction and sentence for
distribution of five or more grams of cocaine base. Mitchell
argues that 21 U.S.C. § 841, the statute under which he was
convicted and sentenced, was rendered facially unconstitutional
by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Mitchell’s
argument is foreclosed by our opinion in United States v.
Slaughter, 238 F.3d 580, 581-82 (5th Cir. 2000)(revised opinion),

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No. 01-31242
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cert. denied, 532 U.S. 1045 (2001), which rejected a broad,
Apprendi-based, attack on the constitutionality of that statute.
We 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).
Mitchell’s argument that 21 U.S.C. § 841(a)(1) is unconstitu-
tional as applied to him also fails. Mitchell has not shown that
he was sentenced to more than the statutory maximum of 240 months
that is appropriate for five grams or more of cocaine base as
charged in the indictment. 21 U.S.C. § 841(b)(1)(C); Apprendi,
530 U.S. at 490.
Mitchell’s argument that there is insufficient evidence to
support his guilty plea fails because he has not shown that the
district court plainly erred in accepting his plea of guilty to
distributing five or more grams of cocaine base. United States
v. Vonn, 122 S. Ct. 1043, 1046 (2002).
AFFIRMED.

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