                                                       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. 05-20250
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

RAFAEL MOTA,
                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:04-CR-276-5
                      --------------------

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

PER CURIAM:*

     Rafael Mota pleaded guilty without a plea agreement to

aiding and abetting and conspiracy to possess with intent to

distribute one kilogram or more of a mixture or substance

containing a detectable amount of heroin and was sentenced to 46

months of imprisonment.    Mota argues that 21 U.S.C. § 841 is

facially unconstitutional in light of Apprendi v. New Jersey, 530

U.S. 466 (2000).   As Mota concedes, his argument is foreclosed by

circuit precedent.   See United States v. Slaughter, 238 F.3d 580,



     *
       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this opinion should not be published and is not precedent except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. 05-20250
                                 -2-

582 (5th Cir. 2000).    He raises the issue only to preserve it for

Supreme Court review.   The district court’s judgment is

      AFFIRMED.
