IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40595 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTURO DE LA GARZA, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-01-CR-776-1 -------------------- February 13, 2003

Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Arturo De La Garza, Jr. appeals his conviction and sentence

for importation of marihuana in violation of

(a),

960(a)(1), 960(b)(4) and

. De La Garza pleaded

guilty pursuant to an oral plea agreement.

De La Garza argues that the district court abdicated its

authority by deferring to the prosecutor to decide whether he

should receive an adjustment for acceptance of responsibility.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40595 -2-

Since De La Garza used cocaine while he was on bond prior to

sentencing, he did not clearly demonstrate acceptance of

responsibility for his offense. See U.S.S.G. § 3E1.1, comment.

(n.1(b)); see also United States v. Rickett,

(5th Cir. 1996).

De La Garza has taken the district court’s statement that it

would “leave that [decision] up to the Government” out of

context. The transcript of the sentencing hearing reveals that

the district court had decided against the adjustment based on De

La Garza’s cocaine use. The lower court stated that it would

grant the adjustment if the Government recommended the reduction.

The district court simply expressed a willingness to be swayed by

comments that it is required to solicit from the parties at the

sentencing hearing about the appropriate sentence. FED. R. CRIM.

P. 32(c)(1). De La Garza has not demonstrated error, plain or

otherwise. See United States v. Alarcon,

(5th

Cir. 2001).

De La Garza also argues that

and 960 are

unconstitutional in light of Apprendi v. New Jersey,

(2000). De La Garza acknowledges that his argument is foreclosed

by this court’s decision in United States v. Slaughter,

, 582 (5th Cir. 2000), but he raises the issue only to

preserve it for review in the Supreme Court. Slaughter applies

by analogy to the instant case because the statutes at issue are

similar in structure and content. A panel of this court cannot No. 02-40595 -3-

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 Supreme Court. Burge v. Parish of St.

Tammany,

(5th Cir. 1999).

The judgment of the district court is AFFIRMED.