United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 24, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-40577 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VICTOR MANUEL MENDOZA-OCHOA, also known as Tomas Claro-Alfaro, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-01-CR-754-1 -------------------- Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:* Victor Manuel Mendoza-Ochoa appeals from his guilty-plea conviction of possession with intent to distribute cocaine. He contends, for the first time on appeal, that 21 U.S.C. § 841 was rendered unconstitutional by Apprendi v. New Jersey, 530 U.S. 466 (2000), because drug types and quantities should be treated as elements of the offense of possession with intent to distribute.

Mendoza concedes that his argument runs counter to this court’s

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40577 -2- caselaw; he raises the issue to preserve it for Supreme Court review.

Because Mendoza did not raise his Apprendi issue in the district court, his contention is reviewed under the plain-error standard. United States v. Vasquez, 298 F.3d 354, 356 (5th Cir.), cert. denied, 123 S. Ct. 546 (2002). Apprendi did not render 21 U.S.C. § 841 facially unconstitutional. Id. at 360.

Mendoza has not shown error, plain or otherwise.

AFFIRMED.