                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        December 9, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-40015
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ERNESTO HERRERA,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. C-00-CR-65-1
                        --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Ernesto Herrera was convicted of possession with intent to

distribute 1,230 kilograms of marijuana and was sentenced to 120

months of imprisonment and a five-year term of supervised

release.   Finding that counsel had rendered ineffective

assistance by failing to file a direct appeal on Herrera’s

behalf, the district court granted Herrera leave to file an out-

of-time appeal.


     *
        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that this opinion should not be published and is not precedent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. 03-40015
                                -2-

     In Herrera’s sole issue on appeal, he argues that 21 U.S.C.

§ 841 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.    Herrera

concedes that his argument is foreclosed by United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), but he raises the

issue in order to preserve it for possible Supreme Court review.

     Herrera also requests that his case be remanded to the

district court for an evidentiary hearing on his ineffective-

assistance claims.   Those claims were raised by Herrera in a

28 U.S.C. § 2255 proceeding, but review of those claims was

previously pretermitted by this court.    Herrera has failed,

however, to squarely present those claims on direct appeal

and they are thus not properly before this court.    Nor is the

record adequately developed so as to permit this court to address

any such claims in this appeal.   See United States v. Haese,

162 F.3d 359, 363-64 (5th Cir 1998).

     AFFIRMED.
