United States v. Mills

* 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that this opinion should not be published and is not precedent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
August 20, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-21237
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE MILLS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-244-1
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Andre Mills appeals his guilty plea conviction for aiding
and abetting the possession of more than five grams of cocaine
base with intent to distribute. Mills argues that 21 U.S.C.
§§ 841 (a) and (b) were rendered facially unconstitutional by
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Mills concedes
that his argument is foreclosed by our opinion in United States
v. Slaughter, 238 F.3d 580, 581-82 (5th Cir. 2000) (revised
opinion), cert. denied, 532 U.S. 1045 (2001), which rejected a

-- 1 of 2 --

No. 02-21237
-2-
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, Mills’s argument is foreclosed.
AFFIRMED.

-- 2 of 2 --