                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 9, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-41657
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LARRY DALE KOCEVAR,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:04-CR-185
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Larry Dale Kocevar pleaded guilty to possession with intent

to distribute eleven kilograms of marijuana and was sentenced to

24 months of imprisonment, three years of supervised release, a

$50 fine, and a $100 special assessment.    Kocevar argues for the

first time on appeal that the provisions found at 21 U.S.C.

§ 841(a) and (b) are unconstitutional under Apprendi v. New

Jersey, 530 U.S. 466 (2000).   Kocevar’s appeal waiver, contained

in his plea agreement, does not bar review of this issue because


     *
       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this opinion should not be published and is not precedent except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. 04-41657
                               -2-

he did not waive his right to appeal the conviction.

Nevertheless, as he concedes, this issue is foreclosed.   See

United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).

Therefore, the judgment of the district court is AFFIRMED.
