Opinion
No. 10-51149
10-21-2011
UNITED STATES OF AMERICA, Plaintiff-Appellee v. NOE JAIMES, Defendant-Appellant
Summary Calendar
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:10-CR-385-1
Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges. PER CURIAM:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Noe Jaimes appeals his guilty plea conviction for possession with intent to distribute five grams or more of cocaine base. The district court sentenced Jaimes to 292 months of imprisonment.
Jaimes first argues that the district court erred in denying his motion to dismiss the indictment in light of the enactment of the Fair Sentencing Act of 201, Pub. L. No. 111-220, 124 Stat. 2372. Jaimes's voluntary and unconditional guilty plea waived any challenge to the denial of his motion to dismiss the indictment. See United States v. Brice, 565 F.2d 336, 337 (5th Cir. 1977); United States v. Sealed Appellant, 526 F.3d 241, 242 (5th Cir. 2008).
Next, Jaimes contends that the district court erred in enhancing his sentence as a career offender pursuant to U.S.S.G. § 4B1.1 based on a finding that his Texas conviction for possession with intent to manufacture and deliver cocaine was a "controlled substance offense." Jaimes correctly concedes that this argument is foreclosed by United States v. Ford, 509 F.3d 714, 717 (5th Cir. 2007), but he argues that Ford was wrongly decided. One panel of this court may not overrule the decision of a prior panel in the absence of en banc decision or a superseding Supreme Court decision. See United States v. Lipscomb, 299 F.3d 303, 313 n. 34 (5th Cir. 2002). The judgment of the district court is affirmed.
AFFIRMED.