United States v. Aguilar , 83 F. App'x 610 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-10194
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER GUADALUPE AGUILAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-260-6-Y
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Javier Guadalupe Aguilar appeals his guilty-plea conviction
and sentence for conspiracy to distribute more than 100 kilograms
of marijuana. Aguilar challenges the constitutionality of 21
U.S.C. § 841 and argues that the Supreme Court’s decision in
Harris v. United States, 536 U.S. 545, 556 (2002), calls into
question United States v. Slaughter, 238 F.3d 580 (5th Cir.
2000), cert. denied, 532 U.S. 1045 (2001), in which this court
upheld the constitutionality of 21 U.S.C. § 841. In Harris, the
*
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that this opinion should not be published and is not precedent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. 03-10194
-2-
Supreme Court upheld a federal statute that permitted a judge to
determine the presence or absence of a factor required for
determination of the applicable statutory minimum sentence. 536
U.S. at 568. In Harris, the Supreme Court did not consider the
constitutionality of 21 U.S.C. § 841 or expressly reject this
court’s view of 21 U.S.C. § 841 in Slaughter. One panel of this
court may not overrule the decision of another absent an
intervening decision to the contrary by the Supreme Court or the
en banc court. See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir.
1997). Because Slaughter has not been overruled and is still
binding precedent in this circuit, Aguilar’s argument is
foreclosed. The district court’s judgment is AFFIRMED. The
Government’s motion for summary affirmance is GRANTED.