                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 22, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 02-10973
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MACHEO HILL, also known as Mace;
ROQUE RANGEL, JR., also known as Rock,

                                     Defendants-Appellants.

                        --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                        USDC No. 1:02-CR-3-9
                        --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Macheo Hill and Roque Rangel, Jr., were convicted of,

inter alia, conspiracy and possession with intent to distribute

narcotics in violation of 21 U.S.C. § 841(b).    Hill was additionally

convicted of being a felon in possession of ammunition in violation

of 18 U.S.C. § 922(g)(1).    Hill was sentenced to an aggregate

sentence of life and an aggregate 10-year supervised release

term.    Rangel was also sentenced to an aggregate sentence 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that this opinion should not be published and is not precedent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. 02-10973
                                -2-

life, but his supervised release term was an aggregate of only

five years.   Both Hill and Rangel filed timely notices of appeal.

The Government’s motion seeking leave to forego filing a brief in

this case is GRANTED.

     Both appellants argue that 21 U.S.C. § 841(a) and (b) is

facially unconstitutional in light of Apprendi v. New Jersey,

530 U.S. 466 (2000), because the statute’s structure treats drug

types and quantities as sentencing factors.   Hill additionally

asserts that the district court erred by enhancing his sentence

under 21 U.S.C. §§ 841(b) and 851 based on his prior felony drug

conviction because the fact of that conviction was not set forth

in his indictment nor proved to a jury beyond a reasonable doubt.

The appellants concede that their arguments are foreclosed by

United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000),

and Almendarez-Torres v. United States, 523 U.S. 224, 235-47

(1998), respectively.

     Rangel argues that the district court deprived him of his

right to due process in violation of Apprendi, by finding drug

quantities by a preponderance of the evidence.    However, Rangel

concedes that this argument is foreclosed by United States

v. Keith, 230 F.3d 784, 786-87 (5th Cir. 2000).

     Hill argues that there was insufficient evidence to support

the interstate-commerce element of his conviction under 18 U.S.C.

§ 922(g) and that the statute is unconstitutional, both facially

and as applied in his case.   Hill concedes that these arguments
                           No. 02-10973
                                -3-

are foreclosed by United States v. Daugherty, 264 F.3d 513, 518

(5th Cir. 2001) (firearm case), cert. denied, 534 U.S. 1150

(2002), and United States v. Rawls, 85 F.3d 240 (5th Cir. 1996),

respectively.

     Each of the issues raised by the appellants has been raised

for the purpose of preserving those issues for possible further

review.   Accordingly, the judgment of the district court with

respect to each of the appellants is AFFIRMED.
