United States v. Estrada-Hernandez , 53 F. App'x 289 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4508
REMEDIO ESTRADA-HERNANDEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-01-245)
Submitted: December 3, 2002
Decided: December 23, 2002
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Frances P. Turner, SMITH MOORE, L.L.P., Greensboro, North Caro-
lina, for Appellant. Anna Mills Wagoner, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. ESTRADA-HERNANDEZ
OPINION
PER CURIAM:
Remedio Estrada-Hernandez appeals his conviction and sentence
for one count of conspiracy to distribute in excess of five kilograms
of cocaine hydrochloride in violation of 21 U.S.C. §§ 841, 846
(2000). On appeal, Estrada-Hernandez contends the district court
abused its discretion by permitting a witness to testify as to a state-
ment made by Estrada-Hernandez threatening a witness. Estrada-
Hernandez claims the statement was not relevant and it was unfairly
prejudicial. Estrada-Hernandez also contends a prior felony drug con-
viction used to increase the statutory minimum sentence under
§ 841(b)(1)(A) should have been in the indictment and proven beyond
a reasonable doubt. Finding no reversible error, we affirm.
A district court has broad discretion in ruling on the relevance and
admissibility of evidence, which will not be reversed absent an abuse
of that discretion. United States v. Bostian, 59 F.3d 474, 480 (4th Cir.
1995). Evidence is relevant and may be admitted if it tends "to make
the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without
the evidence." Fed. R. Evid. 401. Evidence that is not relevant is not
admissible. See Fed. R. Evid. 402. Evidence that a defendant made
threats against a witness is relevant of consciousness of guilt. United
States v. Van Metre, 150 F.3d 339, 352 (4th Cir. 1999). We find the
court did not abuse its discretion by denying the motion in limine and
permitting testimony about a statement made by Estrada-Hernandez.
We further find the prior felony drug conviction used to increase
the statutory minimum sentence under § 841(b)(1)(A) did not need to
be in the indictment or proven beyond a reasonable doubt.
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998);
United States v. Sterling, 283 F.3d 216, 219-20 (4th Cir.), cert.
denied, 122 S. Ct. 2606 (2002).*
*Estrada-Hernandez’ challenges to the drug quantity used to arrive at
his offense level and the prior misdemeanor conviction used to arrive at
his criminal history category are moot because regardless of the resolu-
tion of those issues, Estrada-Hernandez would be subjected to the statu-
tory minimum sentence of twenty years’ imprisonment.
UNITED STATES v. ESTRADA-HERNANDEZ 3
Accordingly, we affirm the conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED