                                                       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,

                         --------------------
                           Consolidated with
                              No. 02-41289
                         --------------------

UNITED STATED OF AMERICA,

                                     Plaintiff-Appellee,

versus

SERGIO LUIS RODRIGUEZ,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-01-CR-643-1
                      --------------------

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that this opinion should not be published and is not precedent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