United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 18, 2004

Charles R. Fulbruge III Clerk No. 03-40295 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMANDO CANTU, III,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-02-CR-295-1 --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Armando Cantu, III, appeals his guilty plea conviction for

being a felon in possession of a firearm. Cantu argues that the

factual basis of his guilty plea was insufficient to support his

conviction under

(g) in light of the Supreme

Court’s decisions in United States v. Morrison,

(2000), and Jones v. United States,

(2000). Cantu

concedes that his argument is foreclosed by our opinion in United

States v. Daugherty,

(5th Cir. 2001), which

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40295 -2-

rejected the contention that either Morrison or Jones affected or

undermined the constitutionality of

(g). 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 Daugherty exists.

Accordingly, Cantu’s argument is indeed foreclosed. 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.