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that this opinion should not be published and is not precedent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