                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS          October 23, 2003
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 03-20009
                         Summary Calendar


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

                         KENNETH SAUCIER,

                                                 Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-02-CR-305-1
                      --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Kenneth Saucier appeals his conspiracy to possess with intent

to distribute 50 grams or more of cocaine base and possession with

intent to distribute 50 grams or more of cocaine base.          Saucier

argues that 21 U.S.C. § 841 was rendered facially unconstitutional

by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).            Saucier

concedes that his argument is foreclosed by our opinion in United

States v. Slaughter, 238 F.3d 580, 581-82 (5th Cir. 2000), which

rejected a broad Apprendi-based attack on the constitutionality of


     *
        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this opinion should not be published and is not precedent except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.
that statute.   He raises the issue only to preserve it for Supreme

Court review.    A panel of this court cannot overrule a prior

panel's decision in the absence of an intervening contrary or

superseding decision by this court sitting en banc or by the United

States Supreme Court.     Burge v. Parish of St. Tammany, 187 F.3d

452, 466 (5th Cir. 1999).     No such decision overruling Slaughter

exists.

     Saucier has filed a pro se motion seeking to withdraw the

filed brief, dismiss his appellate counsel, and represent himself

on appeal.   However, because counsel has already filed a brief on

Saucier's behalf, Saucier's request for the appointment of new

counsel is untimely.     Cf. United States v. Wagner, 158 F.3d 901,

902 (5th Cir. 1998).

     Accordingly, the judgment of the district court is AFFIRMED

and the motion DENIED.




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