                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1358
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Jose Guadalupe Arevalo,                 *
                                        *       [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                          Submitted: August 28, 2002
                              Filed: August 30, 2002
                                   ___________

Before LOKEN, BYE, and RILEY, Circuit Judges.
                            ___________

PER CURIAM.

       Jose Guadalupe Arevalo pled guilty to conspiring to distribute in excess of 5
kilograms of cocaine and in excess of 50 grams of cocaine base, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A), and to two counts of aiding and abetting the
distribution of a mixture or substance containing cocaine (4 kilograms as to one count
and 3 kilograms as to the other), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)
and 18 U.S.C. § 2. At sentencing, the district court1 rejected Arevalo’s argument that
sections 841(b)(1)(A) and (B) were facially unconstitutional under Apprendi v. New

      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
Jersey, 530 U.S. 466 (2000), and sentenced Arevalo to 10 years imprisonment and 5
years supervised release. Arevalo appeals, renewing his constitutional argument. We
affirm.

       Arevalo’s argument is foreclosed by our recent decisions upholding the facial
constitutionality of § 841(b)(1)(A) and (B) after Apprendi, see United States v.
Sprofera, No. 01-3674, 2002 WL 1726817, at *3 (8th Cir. July 26, 2002); United
States v. Carter, 294 F.3d 978, 980-81 (8th Cir. 2002) (per curiam), and further, the
Supreme Court has now held that judges do not violate Apprendi in resolving factors
that increase the statutory minimum sentence. See Harris v. United States, 122 S. Ct.
2406, 2414 (2002).2

      Accordingly, we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
         Arevalo also argues that our reasoning in United States v. Aguayo-Delgado,
220 F.3d 926, 934 (8th Cir.), cert. denied, 531 U.S. 1026 (2000), is faulty, but only
this court en banc may revisit the case. See United States v. Wright, 22 F.3d 787, 788
(8th Cir. 1994).
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