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. 03-40887 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HORTENSIA VILLARREAL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-742-ALL --------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Hortensia Villarreal appeals her guilty plea conviction for

possession with intent to distribute more than five kilograms of

cocaine. Villarreal argues that

(a) and (b)

were rendered facially unconstitutional by Apprendi v. New

Jersey,

(2000). Villarreal concedes that her

argument is foreclosed by our opinion in United States v.

Slaughter,

, 581-82 (5th Cir. 2000), which rejected a

broad Apprendi-based attack on the constitutionality of that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40887 -2-

statute. She 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, Villarreal’s argument is

foreclosed, and the judgment of the district court is AFFIRMED.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. In its motion, the Government asks

that an appellee’s brief not be required. The motion is GRANTED.

AFFIRMED; MOTION GRANTED.