               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-11065
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

DAROLD ELLSWORTH,

                                          Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:01-CR-30-1-Y
                       --------------------
                          April 10, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Darold Ellsworth appeals his sentence of 139 months’

imprisonment and three years’ supervised release after pleading

guilty to possession of Ephedrin with intent to manufacture

methamphetamine.    He argues that the district court erred by

increasing his offense level based on the quantity of drugs and

his possession of a weapon.

     This court specifically rejected Ellsworth’s argument that

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



     *
        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that this opinion should not be published and is not precedent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. 01-11065
                                -2-

§ 841(b) facially unconstitutional.   United States v. Slaughter,

238 F.3d 580, 582 (5th Cir. 2000).    Apprendi is not authority for

invalidating Ellsworth’s sentence for the additional reason that

Ellsworth’s sentence of 139 months’ imprisonment and three years’

supervised release does not exceed the statutory maximum of

twenty years provided in 21 U.S.C. § 841(d)(1).    United States v.

Keith, 230 F.3d 784, 787 (5th Cir. 2000) (“[A] fact used in

sentencing that does not increase a penalty beyond the statutory

maximum need not be alleged in the indictment and proved to a

jury beyond a reasonable doubt.”)

     As the Government correctly points out, Ellsworth’s sentence

was not determined based on drug quantity and weapon possession

as he contends.   Ellsworth was determined to be a career

offender, and his offense level was determined based on the

career offender provisions of U.S.S.G. § 4B1.1, making

Ellsworth’s arguments on appeal irrelevant.

     AFFIRMED.
