                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 21, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-40991
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JORGE PARRA-SOTELO,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:04-CR-36-1
                       --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jorge Parra-Sotelo pleaded guilty to possession with intent

to distribute more than five kilograms of cocaine and was

sentenced to 120 months of imprisonment, five years of supervised

release, and a $200 fine.   Parra-Sotelo argues for the first time

on appeal that the statute of conviction, 21 U.S.C. § 841(a),

(b), is unconstitutional under Apprendi v. New Jersey, 530 U.S.

466 (2000).    Parra-Sotelo’s appeal waiver does not bar review of

this issue because he did not waive his right to appeal his


     *
       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this opinion should not be published and is not precedent except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. 04-40991
                                -2-

conviction.   Nevertheless, as he concedes, this issue is

foreclosed.   See United States v. Slaughter, 238 F.3d 580, 582

(5th Cir. 2000).

     The judgment of the district court is AFFIRMED.
