United States v. Nunez ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10520
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK HINSLEY NUNEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-253-1-A
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December 5, 2001
Before JOLLY, HIGGINBOTHAM and PARKER, Circuit Judges.
PER CURIAM:*
Frank Hinsley Nunez appeals his guilty-plea conviction and
sentence for possession with the intent to distribute a mixture
and substance containing methamphetamine and for distribution of
methamphetamine, in violation of 21 U.S.C. § 841. Nunez argues
that 21 U.S.C. § 841 is unconstitutional, both facially and as
applied in his case. He bases his arguments on Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000).
For the first time on appeal, Nunez argues that the
enhancement of his sentence based on his prior felony drug
convictions violates Apprendi because the fact of those
*
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that this opinion should not be published and is not precedent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. 01-10520
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convictions was not charged in the indictment and proven beyond a
reasonable doubt. Nunez’s argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235-47 (1998),
which held that the fact of a prior conviction is a sentencing
factor. Apprendi did not overrule Almendarez-Torres, but instead
carved out an exception which preserved the holding in that case.
530 U.S. at 489-90. This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)
(internal quotation and citation omitted), cert. denied, 121
S. Ct. 1214 (2001).
Nunez also argues for the first time on appeal that Apprendi
limited the exception created for prior convictions to cases
where the defendant admits those convictions on the record.
Although Apprendi refers to the fact that the defendant in
Almendarez-Torres did not challenge the accuracy of his prior
convictions, nowhere does Apprendi limit Almendarez-Torres to
cases where a defendant admits his prior aggravated felony
convictions on the record. 530 U.S. at 488-90. Nunez’s argument
is without merit. The district court did not err, let alone
plainly err, by enhancing Nunez’s sentence under 21 U.S.C. § 841
based on his prior felony drug convictions.
Finally, Nunez argues that 21 U.S.C. § 841 was rendered
facially unconstitutional by Apprendi. Nunez’s argument is
foreclosed by United States v. Slaughter, 238 F.3d 580, 581-82
(5th Cir. 2000)(revised opinion), cert. denied, 121 S. Ct. 2015
(2001), which rejected a broad, Apprendi-based, attack on the
No. 01-10520
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constitutionality of 21 U.S.C. §§ 841(a) and (b). 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). Nunez has identified no such decision.
In lieu of filing an appellee’s brief, the Government has
filed a motion asking us to dismiss this appeal or, in the
alternative, to summarily affirm the district court’s judgment.
Nunez opposes the motion. The Government’s motion to dismiss is
DENIED. The motion for a summary affirmance is GRANTED. The
Government need not file an appellee’s brief.
MOTION TO DISMISS DENIED; MOTION FOR SUMMARY AFFIRMANCE
GRANTED; AFFIRMED.