United States v. Vidal

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41727
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO VIDAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-452-1
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gerardo Vidal appeals his guilty plea conviction for
possession of more than 50 grams of methamphetamine with intent
to distribute it. Vidal argues that 21 U.S.C. § 841 was rendered
facially unconstitutional by Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). He 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
*
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that this opinion should not be published and is not precedent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. 03-41727
-2-
the constitutionality of 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.
Accordingly, Vidal’s argument is indeed foreclosed. 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.