UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4774
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRICEIDA MITRE,
Defendant - Appellant.
No. 04-4964
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRICEIDA MITRE,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Chief
District Judge. (CR-03-327)
Submitted: May 11, 2005 Decided: June 1, 2005
Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.
John D. Brosnan, LAW OFFICE OF JOHN D. BROSNAN, Fairfax, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, G. David
Hackney, Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Briceida Mitre appeals her conviction and sentence for
conspiracy to possess with intent to distribute one kilogram or
more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000),
and conspiracy to import one kilogram or more of heroin, in
violation of 21 U.S.C. §§ 952(a), 963 (2000). The district court
sentenced Mitre to 151 months in prison.
Mitre argues the district court erred when it allowed a
co-conspirator to testify about a conversation she had with him
while awaiting trial. We review the admission of alleged hearsay
evidence for an abuse of discretion. See United States v. Mohr,
318 F.3d 613, 618 (4th Cir. 2003). Hearsay is “a statement, other
than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c). If the statement is offered for
some purpose other than to prove the truth of the assertion
contained within the statement, it is not inadmissible hearsay.
United States v. Pratt, 239 F.3d 640, 643-44 (4th Cir. 2001).
Because we conclude the testimony was not admitted to prove the
truth of the matter asserted, we conclude it was not hearsay.
Mitre next argues the district court erred when it
permitted the Government to introduce testimony and documentary
evidence about events that occurred after she stopped participating
in the conspiracy. Because we conclude this evidence was relevant
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and not unduly prejudicial, we conclude the district court did not
abuse its discretion when it chose to admit it. See United
States v. Leftenant, 341 F.3d 338, 342 (4th Cir. 2003), cert.
denied, 124 S. Ct. 1183 (2004); United States v. Zandi, 769 F.2d
229, 237 (4th Cir. 1985) (noting that trial court “has broad
discretion in ruling on questions of relevancy and in balancing the
probative value of relevant evidence against any undue
prejudice.”).
Mitre also challenges the district court’s supplemental
jury instruction. Because Mitre did not object to the instruction
at trial, we review for plain error. See United States v. Carr,
303 F.3d 539, 543 (4th Cir. 2002) (“[A]n appellate court may
correct an error not brought to the attention of the trial court if
(1) there is an error (2) that is plain and (3) that affects
substantial rights. If all three of these conditions are met, an
appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
(internal quotation marks and alteration omitted)). Although the
district court failed to inform the jury that Mitre could only be
held responsible for the drug quantities of the other conspirators
if they were reasonably foreseeable and in furtherance of the
conspiracy, we conclude the error did not affect Mitre’s
substantial rights. See United States v. Collins, 401 F.3d 212,
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220 (4th Cir. 2005) (holding that the omission of such an
instruction was not reversible error in light of evidence adduced
at trial).
We conclude, however, that Mitre’s sentence violated
United States v. Booker, 125 S. Ct. 738 (2005). Accordingly, we
vacate Mitre’s sentence and remand for resentencing.* Although the
Sentencing Guidelines are no longer mandatory, Booker makes clear
that a sentencing court must still “consult [the] Guidelines and
take them into account when sentencing.” 125 S. Ct. at 767. On
remand, the district court should first determine the appropriate
sentencing range under the Guidelines, making all factual findings
appropriate for that determination. See United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). The court should consider this
sentencing range along with the other factors described in 18
U.S.C. § 3553(a) (2000), and then impose a sentence. Id. If that
sentence falls outside the Guidelines range, the court should
explain its reasons for the departure as required by 18 U.S.C.
§ 3553(c)(2) (2000). Id. The sentence must be “within the
statutorily prescribed range . . . and reasonable.” Id. at 546-47.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
*
Because Mitre objected in the district court to the mandatory
application of the Sentencing Guidelines, she need not establish
plain error on appeal to be entitled to resentencing. Just as we
noted in United States v. Hughes, 401 F.3d 540, 545 n.4 (4th Cir.
2005), “[w]e of course offer no criticism of the district judge,
who followed the law and procedure in effect at the time” of
Mitre’s sentencing.
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