United States v. Simms ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40488
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH SIMMS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-1109-ALL
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Joseph Simms appeals his guilty plea conviction and sentence
for possessing with the intent to distribute less than 50
kilograms of marijuana. Simms argues that 21 U.S.C. § 841, the
statute under which he was convicted and sentenced, was rendered
facially unconstitutional by Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). Simms concedes that his argument is foreclosed
by our opinion in United States v. Slaughter, 238 F.3d 580, 581-
*
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that this opinion should not be published and is not precedent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. 02-40488
-2-
82 (5th Cir. 2000)(revised opinion), cert. denied, 532 U.S. 1045
(2001), which rejected a broad Apprendi-based attack on 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, Simms’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.