IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40110 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE TORRES-HERNANDEZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-779-ALL -------------------- October 30, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:* Jose Torres-Hernandez appeals his conviction for possession with intent to distribute cocaine. He contends that 21 U.S.C. § 841 is facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

As Torres-Hernandez concedes, his argument is foreclosed by circuit precedent. See United States v. Slaughter, 238 F.3d 580, (5th Cir. 2000), cert. denied., 532 U.S. 1045 (2001). He

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40110 -2- raises the issue only to preserve it for Supreme Court review.

The judgment of the district court is AFFIRMED.