United States v. Lopez

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
March 12, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10839
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABINO LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-5-2
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Before SMITH, WEINER, and OWEN, Circuit Judges.
PER CURIAM:*
Gabino Lopez appeals his guilty-plea conviction and the 80-
month sentence he received for conspiracy to possess with the
intent to distribute and possession with the intent to distribute
more than 500 grams of cocaine, in violation of 21 U.S.C.
§§ 841(a), 841(b), and 846.
Lopez first challenges venue in the Northern District of Texas
for the conviction, arguing that there was insufficient evidence of
an offense in that district. Venue may be waived by a plea of
guilty. See Baeza v. United States, 543 F.2d 572, 573 (5th Cir.

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No. 06-10839
-2-
1976); United States v. Cothran, 302 F.3d 279, 285-86 (5th Cir.
2002). Lopez does not challenge the plea itself, and the plea
operated as a waiver of the alleged venue defect. Even if Lopez
had not waived the issue by his guilty plea, the facts to which
Lopez admitted in his guilty plea were sufficient to establish
venue in the Northern District of Texas. See United States v.
Davis, 666 F.2d 195, 199 & n.5 (5th Cir. 1982) (venue proper in any
district in which offense is begun, continued, or completed);
United States v. Solis, 299 F.3d 420, 445 & n.77 (5th Cir. 2002)
(to establish venue, Government need only prove overt act in
furtherance of conspiracy by any co-conspirator in appropriate
district).
Lopez additionally challenges this court’s prior holding that
a district court has the authority to order a sentence to be run
consecutively to a yet-to-be imposed sentence. United States v.
Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), overruled on other
grounds, United States v. Candia, 454 F.3d 468, 473 (5th Cir.
2006). Lopez does not argue that his particular sentence,
including the order that it run consecutively to a future state
sentence, was unreasonable, but rather that the Brown rule
generally should be overruled. One panel of this court may not
overrule the decision of a prior panel in the absence of en banc
reconsideration or a superseding Supreme Court decision. United
States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002).
The district court’s judgment is AFFIRMED.

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