United States v. Lopez ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-40107
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICENTE LOPEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-877-ALL
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Vicente Lopez 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. § 841is 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. Lopez concedes that his
arguments are foreclosed by United States v. Slaughter, 238 F.3d
*
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that this opinion should not be published and is not precedent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.
No. 02-40107
-2-
580, 582 (5th Cir. 2000) and Almendarez-Torres v. United States,
523 U.S. 224, 235-47 (1998), respectively.
Lopez also argues that his sentence should be vacated and
that his case should be remanded for resentencing because the
district court failed to inform him, as required by 21 U.S.C.
§ 851(b), that Lopez had to collaterally challenge the prior
conviction used to enhance his sentence prior to the imposition
of sentence in this case or the collateral challenge to that
prior conviction would be waived. Lopez has not shown reversible
plain error with respect to this issue. See United States
v. Cotton, 535 U.S. 625, 631-32 (2002); United States v. Majors,
328 F.3d 791, 796-97 (5th Cir. 2003); United States v. Garcia,
954 F.2d 273, 277-78 (5th Cir. 1992); United States v. Fragoso,
978 F.2d 896, 902-03 (5th Cir. 1992).
AFFIRMED.