United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 23, 2004
Charles R. Fulbruge III
Clerk
No. 02-41657
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELPIDIA REYES; MARIA SAENZ,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-331
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Elpidia Reyes and Maria Saenz appeal from their convictions
and sentences following a jury trial for conspiracy to possess
with intent to distribute (count one) and possession with intent
to distribute (count two) more than 500 grams of cocaine, in
violation of 21 U.S.C. §§ 841, 846. Finding no reversible error,
we affirm.
Saenz argues that the evidence was insufficient to support
her conviction because, although she was charged with offenses
*
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that this opinion should not be published and is not precedent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. 02-41657
-2-
involving more than 500 grams of cocaine, a DEA lab analysis of
the substance seized showed a net weight of 493.2 grams and a
pure drug amount of 399.4 grams. Saenz stipulated at trial that
the amount of drugs at issue was 566 grams. After reviewing the
record, we conclude that the evidence was sufficient. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995); see also United
States v. Branch, 46 F.3d 440, 442 (5th Cir. 1995).
Saenz next argues that her trial counsel rendered
ineffective assistance by stipulating to a drug quantity in
excess of 500 grams. We decline to reach the merits of Saenz's
argument on direct appeal. See United States v. Navejar, 963
F.2d 732, 735 (5th Cir. 1992); United States v. Bounds, 943 F.2d
541, 544 (5th Cir. 1991).
Saenz argues that the district court erroneously determined
her base offense level without reference to the 399.4-gram weight
of the pure drugs. Saenz did not make this argument to the
district court, and we conclude that there was no plain error in
the district court's calculation of the base offense level. See
U.S.S.G. § 2D1.1(c), Note (A) & comment. (n.1): United States v.
Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003).
Finally, Saenz argues that the district court erroneously
imposed a supervised release term of four years instead of three
years. The district court determined for sentencing purposes
that the amount of cocaine at issue was 493 grams, which is less
No. 02-41657
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than the 500 grams necessary for a four-year term of supervised
release under 21 U.S.C. § 841(b)(1)(B). The Government concedes
that Saenz should have been sentenced to three years of
supervised release. Therefore, we modify the district court's
judgment to reflect a three-year supervised release term and
affirm the judgment as modified. See United States v. Cooper,
274 F.3d 230, 244 (5th Cir. 2001); United States v. Doggett, 230
F.3d 160, 165 n.2 (5th Cir. 2000).
Reyes argues that the district court erroneously admitted
evidence under FED. R. EVID. 404(b) of an extraneous conviction
imposed upon her for possession of marijuana that occurred two
weeks after the events charged in the indictment in this case.
She further argues that the district court failed to make the
required probative-value-versus-prejudicial-effect analysis on
the record. We conclude that the district court did not abuse
its discretion by admitting the extraneous offense evidence. See
United States v. Bermea, 30 F.3d 1539, 1561 (5th Cir. 1994);
United States v. Roberts, 619 F.2d 379, 383 (5th Cir. 1980);
United States v. Beechum, 582 F.2d 898, 911 (1978)(en banc).
Because Reyes did not request that the district court make the
probative value/prejudice analysis, the district court was not
required to make the analysis on the record. United States v.
Alarcon, 261 F.3d 416, 424 (5th Cir. 2001).
The district court's judgment as to Saenz is AFFIRMED AS
MODIFIED. The district court's judgment as to Reyes is AFFIRMED.