United States v. Trevino ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50427
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ADAM TREVINO, also known as
Michael Trevino,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-422-ALL
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Michael Adam Trevino appeals his sentence following his
guilty-plea conviction for possession with intent to distribute
more than 50 grams of cocaine base. Trevino concedes that his
plea agreement included a waiver-of-appeal provision, but the
Government does not seek to enforce it and the record of
rearraignment reveals that the district court did not confirm
that Trevino understood the appeal waiver. Under these
circumstances, the appeal waiver will not be enforced. See Fed.
R. Crim. P. 11(c)(6); United States v. Robinson, 187 F.3d 516,
517-18 (5th Cir. 1999).
*
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that this opinion should not be published and is not precedent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. 01-50427
-2-
Trevino contends that 21 U.S.C. § 841(b)(1)(A), which
establishes the statutory penalty for the type and quantity of
drugs involved, is unconstitutional following Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). Trevino concedes that his
argument is foreclosed by this court's precedent. See United
States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert.
denied, 121 S. Ct. 2015 (2001), but he seeks to preserve the issue
for Supreme Court review.
AFFIRMED.