                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       April 14, 2005

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-40598



                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                               NOEL LERMA,

                                                     Defendant-Appellant.



            Appeal from the United States District Court
                  for the Eastern District of Texas
                    USDC No. 1:03-CR-128-RC-ESH-2


Before REAVLEY, JONES, and GARZA, Circuit Judges.

PER CURIAM:*

           Noel Lerma appeals from his convictions of possession

with intent to distribute heroin, conspiracy to possess with intent

to distribute heroin, and providing a prisoner with contraband. He

contends that the district court erred by admitting evidence of his

gang affiliation, that the district court erred by admitting

evidence of a prior conviction and a prior drug sale inside prison,

that the district court erred by admitting into evidence audiotape

recordings as the non-hearsay statements of a coconspirator, and



     *
            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opinion should not be published and is not precedent except under the limited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 the evidence was insufficient to support his convictions.

Finding no reversible error, we affirm.

          This court reviews the district court’s admission of

testimony for an abuse of discretion.      United States v. Clements,

73 F.3d 1330, 1334 (5th Cir. 1996).    The gang-affiliation evidence

in Lerma’s case demonstrated that he and Joe Castro were affiliated

with each other and that gang members faced punishment for keeping

secrets from the gang or causing trouble for the gang.                 The

evidence was intrinsic to the charges against Lerma.           See United

States v. Stovall, 825 F.2d 817, 825 (5th Cir.), amended, 833 F.2d

526 (1987).   Its admission was not erroneous.

          Lerma’s particular conditional stipulation to intent did

not preclude the Government from introducing prior bad-act evidence

under the circumstances of this case.      United States v. Palmer, 37

F.3d 1080, 1083 (5th Cir. 1994).    Lerma’s prior drug conviction was

admissible as probative of his intent.          See United States v.

Taylor, 210 F.3d 311, 318 (5th Cir. 2000).           The testimony of

another prisoner regarding a previous drug purchase was relevant to

showing that Lerma intended to distribute any heroin he helped to

traffic into prison.   The admission of that testimony was not an

abuse of discretion.   See Clements, 73 F.3d at 1334.

          The   testimony   at   Lerma’s   trial,   combined    with   the

audiotapes, indicated that Lerma and Joe Castro were involved in a

conspiracy, that the statements on the audiotapes were made in

furtherance of the conspiracy, and that the statements were made

                                   2
during    the   course   of    the    conspiracy.         The   admission      of   the

audiotape statements was not an abuse of discretion. See Clements,

73 F.3d at 1334; United States v. Torres, 685 F.2d 921, 925 (5th

Cir. 1982).

             Finally, the jury could have inferred beyond a reasonable

doubt from the evidence that Lerma and his fellow prisoner Billy

Roberson agreed to bring heroin into prison via Lynda Kirkpatrick;

that Lerma      delegated     to   Joe    Castro   the     details      of   providing

Kirkpatrick with the heroin; that Lerma intended to distribute any

heroin that he received; that Kirkpatrick brought heroin received

from Castro’s contacts into the prison; that Roberson gave Lerma

the heroin; and that Lerma distributed or participated in dis-

tributing it to other prisoners.               The evidence was sufficient to

support Lerma’s substantive convictions based upon coconspirators’

testimony, see United States v. Velgar-Vivero, 8 F.3d 236, 241 (5th

Cir. 1993), United States v. Ayala, 887 F.2d 62, 67 (5th Cir.

1989); or upon the Pinkerton doctrine, see Pinkerton v. United

States, 328 U.S. 640, 66 S. Ct. 1180 (1946); or as an aider and

abetter.

             In a Federal Rules of Appellate Procedure Rule 28(j)

letter,     counsel   for     Lerma   advised      the    court    of    the    Booker

sentencing decision.        The subject of sentencing was not mentioned

in   oral   argument,    however,        and   Lerma     briefed   no    substantive

complaints about his sentence before or after Booker.                        Under the

circumstances, he has not borne the burden of establishing plain

                                           3
error in the sentence.       See U.S. v. Mares, __ F.3d __, 2005 WL

503715 (5th Cir. Mar. 04, 2005).

            For   these   reasons,   the   judgment   and   sentence   are

AFFIRMED.




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