                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-51119
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JESUS ANTONIO SANDOVAL-ORTIZ,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 3:04-CR-2457-3
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jesus Antonio Sandoval-Ortiz was convicted by a jury of

conspiracy and possession with intent to distribute cocaine and

was sentenced to 120 and 60 months of imprisonment to run

concurrently and five years of supervised release.     Sandoval-

Ortiz argues that the district court erred by allowing Officer

Garcia to testify that he, Sandoval-Ortiz, knew of the cocaine.

He contends that Garcia’s testimony that he had no doubt that

Sandoval-Ortiz knew of the cocaine told the jury what result to


     *
       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this opinion should not be published and is not precedent except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. 05-51119
                                 -2-

reach in violation of the rules of evidence and invaded the

province of the jury.

     The Government argues that Sandoval-Ortiz’s objection to the

form of the question was insufficient to preserve the error

argued on appeal and that the issue must be reviewed for plain

error.   Sandoval-Ortiz replies that he adequately preserved the

error so that the abuse of discretion standard of review applies.

He notes that he made a full objection mere minutes later outside

the presence of the jury.   We hold that the motion for mistrial

was sufficient to preserve the issue for appeal.   Contrast

United States v. Pettigrew, 77 F.3d 1500, 1516 and n.14 (5th Cir.

1996) (motion to strike testimony made next day not timely to

preserve objection).

     This court reviews a district court’s decision to admit

evidence for an abuse of discretion.   Any error is subject to

harmless error review, which means that reversal is not required

unless there is a reasonable possibility that the improperly

admitted evidence contributed to the conviction.   United States

v. Mendoza-Medina, 346 F.3d 121, 127 (5th Cir. 2003).

     Although Garcia’s testimony concerned the ultimate issue of

Sandoval-Ortiz’s knowing participation in the cocaine deal,

Garcia did not testify that in his opinion, Sandoval-Ortiz was

guilty of conspiracy or possession with intent to distribute.

Rather, Garcia’s testimony was that, based on what Sandoval-Ortiz

did that night, Garcia had no doubt that Sandoval-Ortiz knew he
                            No. 05-51119
                                 -3-

was delivering cocaine.   This opinion was offered in response to

Sandoval-Ortiz’s suggestion that he was an innocent bystander

just passing a bag.   This was a rational inference based on

Garcia’s personal participation and observations as an undercover

agent posing as a drug dealer.   See United States v. Miranda, 248

F.3d 434, 441 (5th Cir. 2001) (special agent investigating

conspiracy allowed to testify regarding his opinions concerning

meaning of code words used in drug ring based on personal

perceptions).

     Even if the district court erred in permitting Officer

Garcia’s testimony, the error is harmless.    Officer Garcia’s

statement constituted only a small portion of the Government’s

case.   There was ample circumstantial evidence of Sandoval-

Ortiz’s guilty knowledge.   See United States v. Washington, 44

F.3d 1271, 1283 (5th Cir. 1995)(any error in admitting opinion

testimony harmless because government presented overwhelming

evidence establishing defendant’s guilt).    Mendoza stated that

the man with the cocaine was in the alley, and Mendoza left the

Big 8 parking lot and drove to the alley.    Agent Hoff observed a

man from the house in the alley get into the rear of Mendoza’s

car, and minutes later, Sandoval-Ortiz was observed by Garcia in

the rear of the car holding a bag containing two bricks of

cocaine.   Garcia asked about the third kilo, and Sandoval-Ortiz

said, “That’s all there is.”   When Garcia asked him about the

quality, Sandoval-Ortiz nodded his head indicating to Garcia that
                            No. 05-51119
                                 -4-

the quality was good.    These are the facts that the Government

focused on in its closing argument.    The prosecutor did not even

mention Garcia’s statement regarding Sandoval-Ortiz’s knowledge

in closing argument.    Sandoval-Ortiz has failed to demonstrate

reversible error.

     For the first time on appeal, Sandoval-Ortiz argues that the

penalty scheme in 21 U.S.C. § 841(a) and (b) is unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Sandoval-Ortiz concedes that his argument is foreclosed by United

States v. Slaughter, 238 F.3d 580, 582-84 (5th Cir. 2000), but he

states that he is raising the issue in order to preserve it for

Supreme Court review.    In Slaughter, 238 F.3d at 581-82, we

rejected a broad, Apprendi-based attack on the constitutionality

of §§ 841(a) and (b) and 846.    We held that there is “nothing in

the Supreme Court decision in Apprendi which would permit [this

court] to conclude that 21 U.S.C. §§ 841(a) and (b), 846, and

860(a) are unconstitutional on their face.”    Id. at 582.

Sandoval-Ortiz’s argument is foreclosed, as he so concedes.

Accordingly, the district court’s judgment is AFFIRMED.
