           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           March 5, 2008

                                       No. 06-41685                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

HUMBERTO GARCIA

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:05-CR-1659-1


Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Defendant-appellant Humberto Garcia appeals his conviction for
conspiracy to possess with intent to distribute in excess of one thousand
kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and
846, and aiding and abetting possession with intent to distribute in excess of one
hundred kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 18 U.S.C. § 2. Garcia contends that the district court’s
admission of tape recorded statements discussing his participation in 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41685

marijuana conspiracy violated his rights under the Sixth Amendment’s
Confrontation Clause. For the following reasons, we affirm his conviction.
     1.    We review the district court’s evidentiary rulings for abuse of
           discretion, United States v. Cheramie, 51 F.3d 538, 540 (5th Cir.
           1995), and alleged violations of the Confrontation Clause de novo,
           United States v. Delgado, 401 F.3d 290, 299 (5th Cir. 2005).
     2.    Oscar Palacios’s statements were properly admitted to provide
           context for the statements of other co-conspirators, as opposed to for
           the truth of matter asserted in the statements. And “because the
           Confrontation Clause does not bar the use of testimonial statements
           for purposes other than establishing the truth of the matter
           asserted,” there was also no Sixth Amendment violation. United
           States v. Acosta, 475 F.3d 677, 683 (5th Cir. 2007). Furthermore,
           because Palacios was available to both parties to testify, there is not
           a Confrontation Clause problem.
AFFIRMED.




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