* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-10520

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANK HINSLEY NUNEZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:00-CR-253-1-A

--------------------

December 5, 2001

Before JOLLY, HIGGINBOTHAM and PARKER, Circuit Judges.

PER CURIAM:*

Frank Hinsley Nunez appeals his guilty-plea conviction and

sentence for possession with the intent to distribute a mixture

and substance containing methamphetamine and for distribution of

methamphetamine, in violation of 21 U.S.C. § 841. Nunez argues

that 21 U.S.C. § 841 is unconstitutional, both facially and as

applied in his case. He bases his arguments on Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000).

For the first time on appeal, Nunez argues that the

enhancement of his sentence based on his prior felony drug

convictions violates Apprendi because the fact of those
No. 01-10520 

-2-

convictions was not charged in the indictment and proven beyond a

reasonable doubt. Nunez’s argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235-47 (1998),

which held that the fact of a prior conviction is a sentencing

factor. Apprendi did not overrule Almendarez-Torres, but instead

carved out an exception which preserved the holding in that case. 

530 U.S. at 489-90. This court must follow Almendarez-Torres

“unless and until the Supreme Court itself determines to overrule

it.” United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)

(internal quotation and citation omitted), cert. denied, 121

S. Ct. 1214 (2001). 

Nunez also argues for the first time on appeal that Apprendi

limited the exception created for prior convictions to cases

where the defendant admits those convictions on the record. 

Although Apprendi refers to the fact that the defendant in

Almendarez-Torres did not challenge the accuracy of his prior

convictions, nowhere does Apprendi limit Almendarez-Torres to

cases where a defendant admits his prior aggravated felony

convictions on the record. 530 U.S. at 488-90. Nunez’s argument

is without merit. The district court did not err, let alone

plainly err, by enhancing Nunez’s sentence under 21 U.S.C. § 841

based on his prior felony drug convictions.

Finally, Nunez argues that 21 U.S.C. § 841 was rendered

facially unconstitutional by Apprendi. Nunez’s argument is

foreclosed by United States v. Slaughter, 238 F.3d 580, 581-82

(5th Cir. 2000)(revised opinion), cert. denied, 121 S. Ct. 2015

(2001), which rejected a broad, Apprendi-based, attack on the
No. 01-10520 

-3-

constitutionality of 21 U.S.C. §§ 841(a) and (b). 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). Nunez has identified no such decision. 

In lieu of filing an appellee’s brief, the Government has

filed a motion asking us to dismiss this appeal or, in the

alternative, to summarily affirm the district court’s judgment. 

Nunez opposes the motion. The Government’s motion to dismiss is

DENIED. The motion for a summary affirmance is GRANTED. The

Government need not file an appellee’s brief. 

MOTION TO DISMISS DENIED; MOTION FOR SUMMARY AFFIRMANCE

GRANTED; AFFIRMED.