                                                         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. 02-41786
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

FERNANDO CUELLAR,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. L-02-CR-985-ALL
                         --------------------

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

PER CURIAM:*

     Fernando Cuellar appeals his guilty plea conviction for

possession with intent to distribute over 100 kilograms of

marijuana.     Cuellar argues that 21 U.S.C. §§ 841 (a) and (b) were

rendered facially unconstitutional by Apprendi v. New Jersey,

530 U.S. 466, 490 (2000).     Cuellar concedes that his argument is

foreclosed by our opinion in United States v. Slaughter, 238 F.3d

580, 581-82 (5th Cir. 2000), cert. denied, 532 U.S. 1045 (2001),



     *
        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that this opinion should not be published and is not precedent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. 02-41786
                                -2-

which rejected a broad Apprendi-based attack on the

constitutionality of 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.

Accordingly, Cuellar’s argument is foreclosed.

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.   In its motion, the Government asks

that an appellee’s brief not be required.    The motion is GRANTED.

     AFFIRMED; MOTION GRANTED.
