United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 23, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-40855
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO HOMAR RODRIGUEZ-LUIS,
Defendant-Appellant,
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Consolidated with
No. 02-41289
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UNITED STATED OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO LUIS RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-643-1
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Before DAVIS, BARKSDALE, and, STEWART, 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that this opinion should not be published and is not precedent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.
No. 02-40855 c/w 02-41289
-2-
Sergio Homar Rodriguez-Luis appeals his conviction and
sentence for possession with the intent to distribute cocaine.
He argues that the district court erred in applying a two-level
enhancement under U.S.S.G. § 2D1.1(b)(1) and, additionally, that
21 U.S.C. § 841(a)&(b) are unconstitutional in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000).
The Government met its burden of showing that a temporal and
spatial relationship existed between the weapons, Rodriguez, and
the drug trafficking activity, and Rodriguez failed in his burden
of establishing that it was clearly improbable that the weapons
were connected with the offense. See United States v. Cooper,
274 F.3d 230, 245 & n.8 (5th Cir. 2001). Therefore, the district
court did not clearly err in applying the U.S.S.G. § 2D1.1(b)(1)
enhancement. See United States v. Jacquinot, 258 F.3d 423, 430
(5th Cir. 2001), cert. denied, 534 U.S. 1116 (2002).
Rodriguez correctly concedes that the issue whether 21
U.S.C. § 841(a)&(b) are unconstitutional is foreclosed by United
States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000), and he
raises it only to preserve its further review by the Supreme
Court. We are indeed bound by our precedent absent an
intervening Supreme Court decision or a subsequent en banc
decision. See United States v. Stone, 306 F.3d 241, 243 (5th
Cir. 2002).
AFFIRMED.