United States v. Sandoval-Alvarez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 28, 2006 Charles R. Fulbruge III Clerk No. 05-20479 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE MAURO SANDOVAL-ALVAREZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-492-2 -------------------- Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:* Jose Mauro Sandoval-Alvarez appeals his conviction for conspiracy to possess with intent to distribute cocaine. For the first time on appeal, Sandoval-Alvarez argues that 21 U.S.C. § 841, the statute of conviction, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Government argues that the waiver provision in Sandoval-Alvarez’s plea agreement precludes his attack on the constitutionality of

No. 05-20479 -2- § 841. We assume, arguendo only, that the waiver does not bar the constitutional challenge to 21 U.S.C. § 841.

Sandoval-Alvarez acknowledges that the constitutional challenge is foreclosed by United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), and that he is raising the issue to preserve it for Supreme Court review.

AFFIRMED.