                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-40221
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE SANTOS DE LEON-ROCHA,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. B-03-CR-765-ALL
                       --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Jose Santos De Leon-Rocha appeals from his guilty-plea

conviction for possession with intent to distribute in excess of

50 kilograms of marijuana.   De Leon contends for the first time

on appeal that 21 U.S.C. § 841(a) and (b) are 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.


     *
       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this opinion should not be published and is not precedent except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. 04-40221
                                  -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.”    This court has rejected the argument that

Apprendi rendered the sentencing provisions of 21 U.S.C. § 841

facially unconstitutional.    See Slaughter, 238 F.3d at 582.     As

De Leon concedes, the court’s opinion in Slaughter forecloses his

argument.   See id.

     The judgment of the district court is AFFIRMED.
