United States v. Ayers

* 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that this opinion should not be published and is not precedent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. 01-20734
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

-- 1 of 2 --

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.

-- 2 of 2 --