United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 7, 2005
Charles R. Fulbruge III
Clerk
No. 04-10802
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHNNY MOJICA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-353-3-P
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Johnny Mojica appeals his conviction and sentence imposed
following his jury trial conviction for possession with intent to
distribute five kilograms or more of cocaine. Mojica was sentenced
to a term of imprisonment of 160 months to be followed by a five-
year term of supervised release.
Mojica argues that the district court committed reversible
error in denying his motion in limine and in admitting testimony
interpreting the meaning of a drug code word. He argues that the
*
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this opinion should not be published and is not precedent except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. 04-10802
-2-
probative value of that evidence was outweighed by its prejudicial
effect.
Experienced narcotics agents may testify about the
significance of certain conduct in the drug distribution business,
which includes providing an interpretation of drug jargon or code
words. United States v. Washington, 44 F.3d 1271, 1283 (5th Cir.
1995); see United States v. Griffith, 118 F.3d 318, 321 (5th Cir.
1997). However, the testimony of the witness must be based upon
sufficient facts and data. FED. R. EVID. 702. The agents’
testimony that the word “tamales” meant drugs as opposed to money
was not based on a prior use of that term. The brief reference to
the term by Tijerina did not provide any guidance as to its meaning
within the context of the sentence. Because there appeared to be
little factual support for the agents’ testimony regarding the
meaning of “tamales, it may have been an abuse of discretion to
admit the agents’ testimony. See United States v. Navarro, 169
F.3d 228, 232 (5th Cir. 1999).
Even if this court finds an abuse of discretion in the
admission of evidence, it reviews the error under the harmless-
error doctrine. United States v. Skipper, 74 F.3d 608, 612 (5th
Cir. 1996). When applying the harmless-error standard, this court
views the error in the context of the trial as a whole. United
States v. Wells, 262 F.3d 455, 463 (5th Cir. 2001). Relief is
warranted “only if the [inadmissible] evidence had a ‘substantial
impact’ on the verdict.” Id. (internal quotation marks omitted).
No. 04-10802
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The admission of the testimony did not have substantial impact on
the jury’s verdict. Id. There was evidence independent of the
agents’ interpretation of the meaning of “tamales” to support
Mojica’s conviction for possession with intent to distribute more
than five kilograms of cocaine. Hebert’s testimony that Mojica was
delivering drugs rather than purchasing two kilograms of cocaine
was corroborated by the fact that eight kilograms of cocaine were
found in the truck. The evidence showed that a drug dealer would
not take the unnecessary risk of exposing additional drugs to theft
or seizure by law enforcement. Further, Mojica’s testimony
regarding the circumstances surrounding the drug transaction was
not credible, which explains the jury’s apparent rejection of
Mojica’s testimony concerning his role in the transaction. The
admission of the agents’ interpretation of the word “tamales” did
not have a substantial impact on the verdict and, thus, any error
in the admission of the testimony was harmless. Wells, 262 F.3d at
463.
Mojica argues that the district court erred in raising his
offense level for obstruction of justice in light of United States
v. Booker, 125 S. Ct. 738 (2005). By making an objection at
sentencing under Blakely v. Washington, 542 U.S. 296 (2004), Mojica
preserved a Sixth Amendment claim under Booker. See United States
v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005).
Because the jury was not specifically instructed to determine
beyond a reasonable doubt whether Mojica committed perjury at trial
No. 04-10802
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and thus obstructed justice, the district court’s imposition of
this enhancement under the mandatory guidelines system was a Sixth
Amendment violation. See United States v. Holmes, 406 F.3d 337,
364-65 (5th Cir. 2005). Remarks made by the district court during
sentencing indicate that the district court felt compelled to
sentence Mojica within the guidelines sentencing range. Because
the Government has pointed to no evidence in the record to show
that the district court would have imposed the same sentence if it
had acted under an advisory system, it has not shown that the error
was harmless. See Akpan, 407 F.3d at 377.
Mojica’s conviction is AFFIRMED. His sentence is VACATED, and
the matter is REMANDED for resentencing.
AFFIRMED IN PART; SENTENCE VACATED AND CASE REMANDED FOR
RESENTENCING