                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 14, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-40505
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN JOSE HERNANDEZ,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:04-CR-836-ALL
                        --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     Juan Jose Hernandez (Hernandez) pleaded guilty to possession

with intent to distribute more than 100 kilograms of marijuana

and was sentenced to 60 months of imprisonment and a five-year

term of supervised release.   Hernandez argues for the first time

on appeal that the provisions found in 21 U.S.C. § 841(a) and (b)

are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466

(2000).   As he concedes, this issue is foreclosed.    See United




     *
       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this opinion should not be published and is not precedent except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. 05-40505
                               -2-

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

Therefore, the judgment of the district court is AFFIRMED.
