                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  December 17, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 04-40517
                          Conference Calendar



UNITED STATES OF AMERICA,
                                      Plaintiff-Appellee,

versus

MARIO ALBERTO MUNIZ-TAPIA,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:04-CR-8-1
                      --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Mario Alberto Muniz-Tapia appeals his guilty-plea conviction

and sentence for possession with intent to distribute over 100

kilograms of marijuana.    He contends for the first time on appeal

that 21 U.S.C. § 841 is facially unconstitutional in view of

Apprendi v. New Jersey, 530 U.S. 466 (2000).    He acknowledges

that his argument is foreclosed by United States v. Slaughter,

238 F.3d 580 (5th Cir. 2000), but he seeks to preserve his

argument for further review.



     *
       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this opinion should not be published and is not precedent except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. 04-40517
                                 -2-

      In Apprendi, 530 U.S. at 490, the Supreme Court held that

“[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a

reasonable doubt.”   We have rejected the argument that Apprendi

rendered the sentencing provisions of 21 U.S.C. § 841 facially

unconstitutional.    Slaughter, 238 F.3d at 582.   As Muniz-Tapia

concedes, our opinion in Slaughter forecloses his argument.     See

id.

      The judgment of the district court is AFFIRMED.
