United States v. Saucier , 78 F. App'x 952 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 23, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20009
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH SAUCIER,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-305-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Kenneth Saucier appeals his conspiracy to possess with intent
to distribute 50 grams or more of cocaine base and possession with
intent to distribute 50 grams or more of cocaine base. Saucier
argues that 21 U.S.C. § 841 was rendered facially unconstitutional
by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Saucier
concedes that his argument is foreclosed by our opinion in United
States v. Slaughter, 238 F.3d 580, 581-82 (5th Cir. 2000), which
rejected a broad Apprendi-based attack on the constitutionality of
*
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this opinion should not be published and is not precedent except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.
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.
Saucier has filed a pro se motion seeking to withdraw the
filed brief, dismiss his appellate counsel, and represent himself
on appeal. However, because counsel has already filed a brief on
Saucier's behalf, Saucier's request for the appointment of new
counsel is untimely. Cf. United States v. Wagner, 158 F.3d 901,
902 (5th Cir. 1998).
Accordingly, the judgment of the district court is AFFIRMED
and the motion DENIED.
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