                                                        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. 04-40251
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

VICTOR PRADO-MARTINEZ,

                                     Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. B-03-CR-326-2
                       --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

     Victor Prado-Martinez (Prado) appeals from his guilty-plea

conviction for conspiracy to possess with intent to distribute

more than 1,000 kilograms of marijuana.   Prado 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).   Prado 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this opinion should not be published and is not precedent except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. 04-40251
                                  -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

Prado concedes, the court’s opinion in Slaughter forecloses his

argument.   See id.

     The judgment of the district court is AFFIRMED.
