United States v. Lopez-Ramirez

* 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this opinion should not be published and is not precedent except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 12, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41540
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GRACIELLA LOPEZ-RAMIREZ, also known as Gracie Ramirez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-60
--------------------
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Graciella Lopez-Ramirez (Lopez) appeals her conviction and
sentence following her guilty plea to possession of marijuana
with intent to distribute in violation of 21 U.S.C. § 841. Lopez
argues for the first time on appeal that the holding in Apprendi
v. New Jersey, 530 U.S. 466 (2000), renders § 841(a) & (b)
facially unconstitutional because Congress intended drug
quantity and type to be a sentencing factor and the statute
cannot be rewritten by the courts to correct the alleged
unconstitutionality simply by treating drug quantity and type as

-- 1 of 2 --

No. 05-41540
-2-
elements of the offense. She correctly concedes that this issue
is foreclosed by United States v. Slaughter, 238 F.3d 580, 582
(5th Cir. 2000). She raises it only to preserve further review
by the Supreme Court. We are bound by our precedent absent an
intervening Supreme Court decision or a subsequent en banc
decision. United States v. Short, 181 F.3d 620, 624 (5th Cir.
1999).
AFFIRMED.

-- 2 of 2 --