                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       January 4, 2005

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 04-40016
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   versus

                           BERNARD CUNNINGHAM,

                                                     Defendant-Appellant.



            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 5:03-CR-844-ALL


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

           Following a jury trial, Bernard Cunningham was convicted

of one charge of possession of more than one hundred kilograms of

marijuana with intent to distribute.        The district court sentenced

him to serve eighty-four months in prison and a five-year term of

supervised release.

           Cunningham argues that plain error resulted from the

admission of testimony concerning an offer to transport drugs.               He

argues that this testimony amounts to hearsay and does not fall


     *
            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opinion should not be published and is not precedent except under the limited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.
under    the     exception   to   the   hearsay   rule   for   coconspirator

statements embodied in FED. R. EVID. 801(d)(2).                The disputed

testimony does not amount to hearsay, as it concerns a question or

inquiry. See United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir.

1990). Cunningham has not shown plain error in connection with the

admission of the disputed testimony.

               Cunningham also contends that the statute of conviction,

21 U.S.C. § 841, is unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).            This argument is, as he concedes,

unavailing. See United States v. Slaughter, 238 F.3d 580 (5th Cir.

2000).

               Cunningham has not shown reversible error in connection

with his conviction and sentence. Accordingly, the judgment of the

district court is AFFIRMED.




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