                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                September 23, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-20059
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ROGER SALINAS,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-03-CR-310-1
                      --------------------

Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Roger Salinas appeals from his convictions for conspiracy to

possess with intent to distribute MDMA and aiding and abetting

possession with intent to distribute MDMA.

     Salinas first argues that the district court erred by not

considering conduct associated with a sentence imposed prior to

his commission of the instant offense to be relevant conduct.           We

review the district court’s application of the guidelines de novo




     *
       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this opinion should not be published and is not precedent except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. 04-20059
                                -2-

and its factual determinations for clear error.    See United

States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000).

     To be considered “relevant conduct,” conduct must be “part

of the same course of conduct or common scheme or plan as the

offense of conviction.”   U.S.S.G. § 1B1.3(a)(2) (2003).     However,

conduct associated with a sentence imposed prior to the

commission of the instant offense is “not part of the same course

of conduct or common scheme or plan as the offense of

conviction.”   U.S.S.G. § 1B1.3, comment. (n.8).   We do not find

this note plainly erroneous or inconsistent with the guidelines.

We also are persuaded that the Presentence Report (“PSR”)

provided a sufficient and reliable evidentiary basis to conclude

that Salinas’s prior offense conduct was not part of the same

course of conduct or common scheme or plan as the instant offense

of conviction.   See United States v. Cabrera, 288 F.3d 163, 172

(5th Cir. 2002) (if PSR contains sufficient evidentiary basis and

indicia that information is reliable, absent rebuttal evidence,

district court may adopt PSR’s findings without further inquiry).

      Salinas also challenges, for the first time, the

constitutionality of 21 U.S.C. §§ 841 and 846 in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000).    As Salinas

concedes, his Apprendi argument is foreclosed by United States v.

Slaughter, 238 F.3d 580, 582 (5th Cir. 2000).

     Accordingly, the judgment of the district court is AFFIRMED.
