United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 22, 2004
Charles R. Fulbruge III
No. 03-41527 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIETTA LEZA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(2:03-CR-52-3)
--------------------
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Julietta Leza appeals her conviction for
conspiracy to possess more than five kilograms of cocaine with the
intent to distribute. She asserts that three statements admitted
at trial did not fall under the co-conspirator exception to hearsay
set forth in FED. R. EVID. 801(d)(2)(E), because there was
insufficient evidence to establish Leza’s participation in a
conspiracy or to establish that the comments were made in
furtherance of the conspiracy. The statements and the other
testimony at trial establish by a preponderance of the 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this opinion should not be published and is not precedent except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.
that Leza participated in a conspiracy. See Bourjaily v. United
States, 483 U.S. 171, 181 (1987); Burton v. United States, 237 F.3d
490, 503 (5th Cir. 2000).
Leza did not object to the testimony of Rodney Mirabal with
respect to a statement made to him by Felipe Alvarez (Felipe). We
therefore review the introduction of the evidence for plain error
only. United States v. Cantu, 167 F.3d 198, 204 (5th Cir. 1999).
Leza has not established plain error in the introduction of
Mirabal’s statement.
Leza properly objected to the testimony of Diana Alvarez
regarding statements made to her by Felipe. Even if it is assumed
that the statements were not made in furtherance of the conspiracy,
the introduction of the statements was harmless error. See United
States v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996).
Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), and for
the first time on appeal, Leza asserts that the district court
erred in calculating the drug quantity for the base offense level
and in denying her a minor role reduction. This argument is
foreclosed by our decision in United States v. Pineiro, 377 F.3d
464, 473 (5th Cir.), petition for cert. filed (U.S. July 14, 2004).
Consequently, the judgment of the district court is AFFIRMED.
2