                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 25, 2003

                                                           Charles R. Fulbruge III
                             No. 02-11154                          Clerk
                         Conference Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ANTHONY D. STEPTOE,

                                    Defendant-Appellant.
                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 4:02-CR-57-1
                       --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Anthony D. Steptoe appeals his guilty-plea conviction and

sentence for possessing with the intent to distribute cocaine

base and possessing a controlled substance within 1000 feet of a

playground.    Steptoe argues that 21 U.S.C. § 841 was rendered

facially unconstitutional by Apprendi v. New Jersey, 530 U.S.

466, 490 (2000).    Steptoe also argues that the district court

improperly enhanced his sentence under 21 U.S.C. §§ 841(b)(1)(C)

and 851(c) based on prior convictions that were not alleged in

his indictment.    Steptoe concedes that his arguments are


     *
        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that this opinion should not be published and is not precedent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. 02-11154
                                 -2-

foreclosed.    He raises the issues to preserve them for possible

Supreme Court review.

       In Apprendi, the Supreme Court held “[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.”     530 U.S. at

490.    This court has rejected the argument that Apprendi rendered

21 U.S.C. § 841 facially unconstitutional.     United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).     Steptoe’s

challenge to the constitutionality of that statute is without

merit.

       In Almendarez-Torres v. United States, 523 U.S. 224, 228-47

(1998), the Supreme Court held that sentencing enhancements based

on prior convictions need not be alleged in an indictment and

proved beyond a reasonable doubt.    Apprendi did not overrule

Almendarez-Torres.    See Apprendi, 530 U.S. at 490; United States

v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).     The district court

did not err by enhancing Steptoe’s sentence under 21 U.S.C.

§§ 841(b) and 851(c) based on his prior convictions.     See United

States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000).

       Because Steptoe’s arguments are foreclosed, the Government

has filed a motion requesting leave to forego filing an

appellee’s brief.    The motion is GRANTED.   The judgment of the

district court is affirmed.

       AFFIRMED; MOTION GRANTED.
