United States v. Muniz-Tapia

* 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this opinion should not be published and is not precedent except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
December 17, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40517
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ALBERTO MUNIZ-TAPIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-8-1
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Mario Alberto Muniz-Tapia appeals his guilty-plea conviction
and sentence for possession with intent to distribute over 100
kilograms of marijuana. He contends for the first time on appeal
that 21 U.S.C. § 841 is facially unconstitutional in view of
Apprendi v. New Jersey, 530 U.S. 466 (2000). He acknowledges
that his argument is foreclosed by United States v. Slaughter,
238 F.3d 580 (5th Cir. 2000), but he seeks to preserve his
argument for further review.

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No. 04-40517
-2-
In Apprendi, 530 U.S. at 490, the Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” We have rejected the argument that Apprendi
rendered the sentencing provisions of 21 U.S.C. § 841 facially
unconstitutional. Slaughter, 238 F.3d at 582. As Muniz-Tapia
concedes, our opinion in Slaughter forecloses his argument. See
id.
The judgment of the district court is AFFIRMED.

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