United States v. Ayers

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20734 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH AYERS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-82-1 -------------------- April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Kenneth Ayers appeals his guilty-plea conviction for

possession with the intent to distribute methamphetamine in

violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C). He argues

that under Apprendi v. New Jersey, 530 U.S. 466 (2000), 21 U.S.C.

§ 841 is facially unconstitutional; however, he concedes that

this court rejected an Apprendi-based challenge to the

constitutionality of § 841 in United States v. Slaughter, 238

F.3d 580, 581-82 (5th Cir. 2000), cert. denied, 121 S. Ct. 2015

(2001). He asserts that he is raising the issue to preserve it

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-20734 -2-

for en banc or Supreme Court review. He did not raise the issue

in the district court.

In Slaughter, 238 F.3d at 582, we held that there is

"nothing in the Supreme Court decision in Apprendi which would

permit [this court] to conclude that 21 U.S.C. § 841(a) and (b)

... are unconstitutional on their face." 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).

Moreover, the Ninth Circuit has reversed its decision in United

States v. Buckland, 259 F.3d 1157, 1160-68 (9th Cir. 2001), rev’d

en banc, 277 F.3d 1173 (9th Cir. 2002), the only circuit-level

decision that supported Ayers’s argument.

AFFIRMED.