                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 18, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-40688
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JULIO CESAR GARCIA-REYES,

                                    Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. L-03-CR-48-ALL
                       --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Julio Cesar Garcia-Reyes appeals his guilty plea conviction

for possession of more than 100 kilograms of marijuana.       Garcia-

Reyes argues that 21 U.S.C. § 841 was rendered facially

unconstitutional by Apprendi v. New Jersey, 530 U.S. 466, 490

(2000).   Garcia-Reyes concedes that his argument is foreclosed by

our opinion in United States v. Slaughter, 238 F.3d 580, 581-82

(5th Cir. 2000), which rejected a broad Apprendi-based attack on



     *
        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that this opinion should not be published and is not precedent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. 03-40688
                                  -2-

the constitutionality of that statute.      He raises the issue only

to preserve it for Supreme Court review.

     A panel of this court cannot overrule a prior panel’s

decision in the absence of an intervening contrary or superseding

decision by this court sitting en banc or by the United States

Supreme Court.     Burge v. Parish of St. Tammany, 187 F.3d 452, 466

(5th Cir. 1999).    No such decision overruling Slaughter exists.

Accordingly, Garcia-Reyes’s argument is indeed foreclosed.     The

judgment of the district court 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.
