     Case: 10-51149     Document: 00511639955         Page: 1     Date Filed: 10/21/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 21, 2011
                                     No. 10-51149
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

NOE JAIMES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-385-1


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Noe Jaimes appeals his guilty plea conviction for possession with intent
to distribute five grams or more of cocaine base. The district court sentenced
Jaimes to 292 months of imprisonment.
        Jaimes first argues that the district court erred in denying his motion to
dismiss the indictment in light of the enactment of the Fair Sentencing Act of
201, Pub. L. No. 111-220, 124 Stat. 2372. Jaimes’s voluntary and unconditional
guilty plea waived any challenge to the denial of his motion to dismiss the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-51149   Document: 00511639955     Page: 2   Date Filed: 10/21/2011

                                 No. 10-51149

indictment. See United States v. Brice, 565 F.2d 336, 337 (5th Cir. 1977); United
States v. Sealed Appellant, 526 F.3d 241, 242 (5th Cir. 2008).
      Next, Jaimes contends that the district court erred in enhancing his
sentence as a career offender pursuant to U.S.S.G. § 4B1.1 based on a finding
that his Texas conviction for possession with intent to manufacture and deliver
cocaine was a “controlled substance offense.” Jaimes correctly concedes that this
argument is foreclosed by United States v. Ford, 509 F.3d 714, 717 (5th Cir.
2007), but he argues that Ford was wrongly decided. One panel of this court
may not overrule the decision of a prior panel in the absence of en banc decision
or a superseding Supreme Court decision. See United States v. Lipscomb, 299
F.3d 303, 313 n. 34 (5th Cir. 2002). The judgment of the district court is
affirmed.
      AFFIRMED.




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