IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10338 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ORCENES MASON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CR-157-1-A -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Orcenes Mason appeals his guilty plea conviction and

sentence for possessing with the intent to distribute more than

five grams of a mixture and substance containing a detectable

amount of cocaine base. Mason argues that

was

rendered facially unconstitutional by Apprendi v. New Jersey,

(2000). Mason concedes that his argument is

foreclosed by our opinion in United States v. Slaughter, 238 F.3d

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-10338 -2-

580, 581-82 (5th Cir. 2000)(revised opinion), cert. denied,

(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,

(5th Cir. 1999). No such decision overruling Slaughter exists.

Accordingly, Mason’s argument is indeed foreclosed. The judgment

of the district court is AFFIRMED.

The Government has filed a motion for leave to forego the

filing of an appellee’s brief. The motion is GRANTED.

AFFIRMED; MOTION GRANTED.