                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                                                              April 23, 2003
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk



                            No. 02-41394
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

CRUZ YANEZ-BENAVIDES, also known as
Gabriela Ramirez-Montoya,


                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-02-CR-107-1
                      --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

          Cruz Yanez-Benavides appeals her jury-trial conviction

and sentence for importing and possessing with intent to

distribute more than 500 grams of cocaine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B), 960(b)(1)(A), (b)(2)(B).       She

argues that 21 U.S.C. §§ 841(a), (b), 846, 952, 960(a) and (b),

are facially unconstitutional because, in enacting these

statutes, Congress intended to make drug quantity a sentencing


     *
        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that this opinion should not be published and is not precedent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. 02-41394
                               -2-

enhancement provable to a judge by a preponderance of the

evidence and the courts may not construe these statutes in

contravention of this congressional intent in order to conform

the statutes with the Supreme Court’s holding in Apprendi v. New

Jersey, 530 U.S. 466 (2000).

     Yanez acknowledges that this argument is foreclosed by this

court’s precedent and raises the argument solely to preserve it

for possible Supreme Court review.    See United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), cert. denied, 532

U.S. 1045 (2001).

     Accordingly, the district court’s judgment is AFFIRMED.

     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.
