                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 28, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-20479
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE MAURO SANDOVAL-ALVAREZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:04-CR-492-2
                      --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Jose Mauro Sandoval-Alvarez appeals his conviction for

conspiracy to possess with intent to distribute cocaine.       For the

first time on appeal, Sandoval-Alvarez argues that 21 U.S.C.

§ 841, the statute of conviction, is unconstitutional under

Apprendi v. New Jersey, 530 U.S. 466 (2000).   The Government

argues that the waiver provision in Sandoval-Alvarez’s plea

agreement precludes his 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this opinion should not be published and is not precedent except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.
                           No. 05-20479
                                -2-

§ 841.   We assume, arguendo only, that the waiver does not bar

the constitutional challenge to 21 U.S.C. § 841.

     Sandoval-Alvarez acknowledges that the constitutional

challenge is foreclosed by United States v. Slaughter, 238 F.3d

580, 582 (5th Cir. 2000), and that he is raising the issue to

preserve it for Supreme Court review.

     AFFIRMED.
