United States v. Ramirez

* 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that this opinion should not be published and is not precedent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. 02-40472
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPE DE JESUS RAMIREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-1059-ALL
--------------------
Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Felipe de Jesus Ramirez appeals his guilty-plea conviction
and sentence for possession with intent to distribute in excess
of 100 kilograms of marijuana. He argues that: 1) 21 U.S.C.
§ 841 is facially unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000); and 2) 21 U.S.C. §§ 841(b) and 851
are unconstitutional in light of Apprendi. Ramirez concedes that
his arguments are foreclosed by United States v. Slaughter,

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No. 02-40472
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238 F.3d 580, 582 (5th Cir. 2000) and Almendarez-Torres v. United
States, 523 U.S. 224, 235-47 (1998), respectively.
Apprendi held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
This court has specifically rejected the argument that Apprendi
rendered 21 U.S.C. § 841 facially unconstitutional. See
Slaughter, 238 F.3d at 582. Accordingly, Ramirez’ challenge to
the constitutionality of 21 U.S.C. § 841 is without merit.
Furthermore, Apprendi did not overrule Almendarez-Torres.
See Apprendi, 530 U.S. at 490; see also United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000). This court, therefore, must
follow Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Dabeit, 231 F.3d at 984
(internal quotation and citation omitted). Accordingly, Ramirez’
challenge to the constitutionality of 21 U.S.C. §§ 841(b) and 851
is without merit.
AFFIRMED.

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