United States v. Buitron-Garcia

* 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that this opinion should not be published and is not precedent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. 03-51241
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARIA BUITRON-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-03-CR-128-1
--------------------
Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Maria Buitron-Garcia appeals his guilty plea conviction
for possession with intent to distribute 100 kilograms or more,
but not less than 1,000 kilograms, of marihuana. He argues that
the sentencing provision of 21 U.S.C. § 841(b)(1)(B) is
unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). Buitron-Garcia concedes that his argument is
foreclosed by our opinion in United States v. Slaughter, 238 F.3d
United States Court of Appeals
Fifth Circuit
F I L E D
June 23, 2004
Charles R. Fulbruge III
Clerk

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No. 03-51241
-2-
580, 581-82 (5th Cir. 2000). 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, Buitron-Garcia’s argument is foreclosed, and the
judgment of the district court is AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that an appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.

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