                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS        August 18, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                           No. 04-20114
                        Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

BENITO MANCILLA REAL,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-03-CR-426-ALL
                      --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Benito Mancilla Real appeals from his conviction of

possession with intent to distribute methamphetamine.       He

contends for the first time on appeal that 21 U.S.C. § 841 is

unconstitutional because Congress and the federal courts intended

for drug amounts to be a sentencing factor and not elements of

separate offenses, a scheme rendered unconstitutional by Apprendi

v. New Jersey, 530 U.S. 466 (2000).    Real concedes that his

argument is foreclosed by the caselaw of this court, but he seeks


     *
       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this opinion should not be published and is not precedent except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. 04-20114
                               -2-

to preserve the issue for further review.    Real further argues

that his Apprendi contention was not waived by the waiver

provision in his plea agreement.

     We will address Real’s Apprendi contention on the merits.

See United States v. Longoria, 298 F.3d 367, 370-73 (5th Cir.)(en

banc), cert. denied, 537 U.S. 1038 (2002).    Apprendi did not

render 21 U.S.C. § 841 facially unconstitutional.    United States

v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).    Real has failed

to show error, plain or otherwise, regarding the

constitutionality of 21 U.S.C. § 841.    See FED. R. CRIM. P. 52(b).

     AFFIRMED.
