United States v. Rios

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2008
No. 07-11105
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALEX ROMO RIOS
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:07-CR-22-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Alex Romo Rios appeals his conviction and sentence for conspiracy to
distribute and possess with intent to distribute five kilograms or more of cocaine,
distribution and possession with intent to distribute 50 grams or more of
methamphetamine, and possession with intent to distribute less than 50
kilograms of marijuana. Rios challenges his conviction on the
methamphetamine count on the basis that the district court admitted evidence
*
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should not be published and is not precedent except under the limited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. 07-11105
in violation of the Confrontation Clause under Crawford v. Washington, 541 U.S.
36 (2004), and the hearsay rule, FED. R. EVID. 802. Specifically, he maintains
that the statements of an unavailable confidential informant on a recording of
conversations between the confidential informant and Rios during a
methamphetamine sale by Rios to the confidential informant, a transcript of that
recording, and testimony about the conversations and other conversations
between Rios and the confidential informant given by Drug Enforcement
Administration Agent Alan Westerman and Lubbock Police Officer Manuel
Reyna were improperly admitted. If the challenged evidence were excluded, Rios
asserts that there would be insufficient evidence to support his conviction on the
methamphetamine count.
The statements of the confidential informant on the recording were part
of an integrated and reciprocal conversation with Rios. Officer Reyna testified
that he was in the vicinity of Rios and the confidential informant, saw them
meet, and listened to the conversation while it was being recorded. This
testimony was sufficient indicia of the reliability of the recording and transcript.
See United States v. Cheramie, 51 F.3d 538, 541 (5th Cir. 1995). Accordingly, the
statements of the confidential informant on the recording and transcript were
admitted to provide context to Rios’s statements, were not admitted to prove the
truth of the matters asserted therein, and did not violate the Confrontation
Clause or the hearsay rule. See id.; FED. R. EVID. 801(c). Rios’s attempts to
distinguish Cheramie are without merit as a cautionary instruction is not
necessary to apply the holding in Cheramie and Crawford did not overrule
Cheramie. See United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004) (holding
that limiting instruction cannot cure Confrontation Clause violation); United
States v. Dixon, 132 F.3d 192, 198 (5th Cir. 1997) (applying Cheramie without
presence of limiting instruction); Crawford, 541 U.S. at 68 (refusing to provide
a comprehensive definition of what statements are testimonial that could have
overruled the holding in Cheramie).
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No. 07-11105
The properly admitted evidence against Rios included the recording of the
methamphetamine sale, the methamphetamine itself, testimony that the
substance was methamphetamine, and testimony that Rios’s fingerprint was on
the bag that contained the methamphetamine. Given the overwhelming nature
of the other evidence against Rios, any error in admitting the challenged
testimony of Agent Westerman and Officer Reyna was harmless. See United
States v. Insaulgarat, 378 F.3d 456, 464 (5th Cir. 2004).
Rios argues that the district court erred by applying a four-level
enhancement for his being a leader or organizer of a criminal activity involving
five or more participants. The district court, however, sentenced Rios to the
statutory minimum sentence of life imprisonment without release on the cocaine
and methamphetamine counts and the application of the enhancement did not
change Rios’s sentencing guidelines range on the marijuana count. The record
leaves no reasonable doubt that the district court would have imposed the same
sentence whether or not the four-level enhancement for Rios’s being a leader or
organizer had been applied. Accordingly, any possible error caused by the
application of the enhancement was harmless. See United States v. Mejia-
Huerta, 480 F.3d 713, 720 (5th Cir. 2007), cert. denied, 128 S. Ct. 2954 (2008).
The arguments raised by Rios are without merit. Accordingly, the district
court’s judgment is AFFIRMED, the Government’s motion for summary
affirmance is GRANTED, and the Government’s motion for an extension of time
is DENIED.
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