USA vs. Acuna-Carbajal, (5th Cir. 2005)

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United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

April 20, 2005

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 04-41474

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR ACUNA-CARBAJAL,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:04-CR-276-ALL

Before SMITH, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:* Victor Acuna-Carbajal appeals his conviction and sentence for possession with intent to distribute over 100 kilograms of marijuana. Acuna-Carbajal contends that 21 U.S.C. § 841 is facially unconstitutional in light of Apprendi v. New Jersey,530 U.S. 466 (2000). As Acuna-Carbajal concedes, his argument is foreclosed by circuit precedent. See United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000). He raises the issue only to preserve it for Supreme Court review. The district court's judgment is AFFIRMED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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