                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                     May 26, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                           No. 04-60205
                         Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus


JIMMY TERRELL MOORE; CURTIS E. MOORE,

                                      Defendants-Appellants.

                       --------------------
          Appeals from the United States District Court
             for the Northern District of Mississippi
                          (1:03-CR-34-3)
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Defendants-Appellants Curtis Moore and Jimmy Moore appeal

their convictions and sentences.     We affirm.

                                I.

                      Curtis Moore (“Curtis”)

     The jury found Curtis guilty of distributing in excess of 5

grams of a substance containing cocaine base (crack cocaine) (Count

1), distributing in excess of 50 grams of a substance containing

crack cocaine (Count 2), distributing in excess of 5 grams of a

     *
       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this opinion should not be published and is not precedent except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.
substance containing crack cocaine (Count 3) and an unspecified

amount of a substance containing cocaine hydrochloride (powder

cocaine) (Count 4).      The district court sentenced Curtis to a 151-

month term of imprisonment and five-year term of supervised release

on each count of conviction, to be served concurrently.

      Curtis argues that the evidence was insufficient to support

his convictions on Counts 3 and 4 because there was no evidence

regarding essential elements of those offenses, viz., the specific

amounts of the controlled substances charged in those counts.            The

government sought an enhanced penalty on Count 3 pursuant to 21

U.S.C. § 841 (b)(1)(B), so the drug quantity to support this

enhancement had to be charged and proved to the jury beyond a

reasonable doubt.       United States v. Doggett, 230 F.3d 160, 164-65

(5th Cir. 2000).    The drug quantity for Count 3 was charged in the

indictment; the jury was instructed that it had to find that the

mixture or substance containing crack cocaine weighed in excess of

5 grams; and DEA Forensic Chemist Enrique Pinero testified that the

substance in government exhibit 9 was a mixture of both cocaine

base and cocaine hydrochloride and that the mixture and substance

weighed 85.4 grams. The weight of a controlled substance refers to

the   entire   weight    of   any   mixture   or   substance    containing   a

detectable amount of the controlled substance.            United States v.

Cartwright, 6 F.3d 294, 303 (5th Cir. 1993).                   Based on this

evidence, a reasonable juror could find beyond a reasonable doubt

that the mixture and substance Curtis distributed or possessed with

                                       2
intent     to   distribute   weighed       “in   excess   of     5    grams”      and

“contain[ed] a detectable amount of cocaine base.”               See id.       Thus,

the evidence is sufficient to support Curtis’s conviction on Count

3.   The government did not seek an enhanced penalty on Count 4, so

the drug quantity did not need to be charged or proved to the jury.

See Doggett, 230 F.3d at 165.

      Curtis likewise contends that there was insufficient evidence

to establish a two level enhancement under U.S.S.G. § 3B1.1(c) for

his role as a leader or manager of at least one other person.                      We

review the district court’s interpretation and application of the

sentencing guidelines de novo and its factual findings for clear

error.     United States v. Angeles-Mendoza, ___ F.3d ___, No. 04-

50118, 2005 WL ___ , slip op. at 3 (5th Cir. Apr. 26, 2005).                      The

evidence shows that on the occasions charged in Count 2, 3, and 4

of   the   indictment,   Curtis   negotiated       the    sale       of   drugs   to

confidential informant Willie Ewell and obtained the drugs, which

either he or Armond Moore (“Armond”) delivered to Ewell.                    Curtis

directed co-defendant Armond to deliver drugs to Ewell, to retrieve

“buy money” from Ewell, to count it, and to give the money to

Curtis.    The day after the transaction alleged in Count 5, Curtis

had the “buy money” from that transaction.            The record shows that

the district court’s finding that Curtis was the leader in the drug

trafficking crimes and asserted control or influence over at least

one participant is not clearly erroneous. See U.S.S.G. § 3B1.1(c);



                                       3
U.S.S.G. § 3B1.1, comment (n. 1); United States v. Jobe, 101 F.3d

1046, 1065 (5th Cir. 1996).

     Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Curtis

contends —— for the first time on appeal —— that certain sentencing

guidelines increases violated his Sixth Amendment rights because

the factors on which those increases were based were neither found

by the jury beyond a reasonable doubt nor admitted by him.            To the

extent that Curtis’s sentence was enhanced based on a quantity of

drugs and an offense role found by the district court that went

beyond the facts found by the jury, there was obvious error.

United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),

petition for cert. filed (U.S. Mar. 31, 2005) (No. 04-9517).

Curtis has not, however, “demonstrated that the sentencing judge ——

sentencing under an advisory scheme rather than a mandatory one ——

would have reached a significantly different result.”            Id. at 521.

Thus, he has not shown that the error affected his substantial

rights.

                                     II.

                    Jimmy Terrell Moore (“Jimmy”)

     The   jury   found   Jimmy    guilty   of   aiding   and   abetting   the

distribution of in excess of 50 grams of a substance containing

crack cocaine (Count 5).          The government notified Jimmy of its

intent to seek an enhanced sentenced pursuant to 21 U.S.C. §

841(b)(1)(A) based on his previous felony drug convictions.                The



                                      4
district court sentenced Jimmy to life imprisonment and a 10-year

term of supervised release.

      Jimmy argues that his mere presence at the crime scene,

possible knowledge that a drug transaction was taking place, and

his   role   as    a   mere   lookout   are   insufficient    to   sustain   his

conviction.       This argument is unavailing.      The evidence shows that

Jimmy was an active participant in the drug distribution charged.

He participated in the venture on February 26, 2003, by acquiring

and negotiating the sale of four ounces of crack cocaine to Ewell

for $3,500.       He wanted to see the money and had Ewell count it in

front of him.       Jimmy was seen going in and out of the house where

the money and drugs were exchanged and was seen leaving the house

with Van Jones.         Jimmy told Ewell to deal with “Van,” and he

entered the house with Ewell and Van Jones for the purposes of

weighing and transferring the drugs and money.           Jimmy stood at the

door inside the house as a lookout.           It can reasonably be inferred

that he stood watch to ensure that these activities would not be

interrupted or detected.         Thus, Jimmy sought to make the venture

successful.       The substance transferred that day contained crack

cocaine and had a net weight of 106.1 grams.                 The evidence was

sufficient for the jury to find beyond a reasonable doubt that

Jimmy aided and abetted the distribution of in excess of 50 grams

of cocaine base.

      Jimmy also argues that the district court erred in admitting,

over his hearsay objection, the tape of the drug transaction on

                                        5
which   Van   Jones’s    voice   is     heard    as    the    testimony   of    a

co-conspirator under Rule 801(d)(2)(E) of the Federal Rules of

Evidence.     We will not address whether the district court abused

its discretion by admitting the statements because a review of the

transcript    shows   that   their    admission       was   harmless   beyond   a

reasonable doubt.       See Hafdahl v. Johnson, 251 F.3d 528, 539-40

(5th Cir. 2001).      As this is non-testimonial hearsay, the Sixth

Amendment is not implicated.         See Crawford v. Washington, 541 U.S.

36, 68 (2004).    Before the tape was played, the jury had already

heard Ewell’s testimony that he negotiated the drug deal with

Jimmy, that Jimmy told him to complete the deal with Van, and that

Jimmy stood guard while Ewell and Van weighed the drugs, counted

the money, and exchanged each.             The tape of Van’s statements is

largely inaudible, and the statements were not repetitive of

Ewell’s testimony, did not contradict that testimony, and were not

important in the government’s case against Jimmy.                 There is no

reasonable possibility that Van’s statements on the tape had a

“substantial impact” on the jury’s verdict.                  Any error in the

admission of those statements is harmless.              See United States v.

Williams, 957 F.2d 1238, 1242 (5th Cir. 1992); United States v.

Evans, 950 F.2d 187, 191 (5th Cir. 1991).

     Jimmy also contends that (1) the statute mandating enhancement

of his sentence to life imprisonment, 21 U.S.C. § 841(b)(1), is

unconstitutional because the sentence is grossly disproportionate

to the circumstances of his case in violation of the Eighth

                                       6
Amendment, and (2) the case should be remanded because the district

court mistakenly believed that it had no authority to consider

whether the sentence was grossly disproportionate in light of

mitigating factors.            Measured against the Rummel v. Estelle, 445

U.S.   263     (1980),    benchmark,       Jimmy’s    sentence         is   not    grossly

disproportionate.         See United States v. Gonzales, 121 F.3d at 944,

928 (5th Cir. 1997).               In Rummel, the Supreme Court upheld a life

sentence following a conviction for obtaining $120.75 by false

pretenses, pursuant to a “recidivist statute” providing a mandatory

sentence of life imprisonment for any defendant convicted of three

felonies.      The Court so ruled after concluding that the sentence

was not       so    grossly    disproportionate       as   to    offend      the    Eighth

Amendment.         Rummel, 445 U.S. at 284-85.        Jimmy’s prior convictions

are more serious than the crimes that resulted in a life sentence

for the defendant in Rummel.             Although Jimmy, unlike the defendant

in Rummel, is not eligible for parole, this difference from Rummel

is directly related to the severity of Jimmy’s prior convictions

and the severity of the instant offense, viz., distribution of more

than 100 grams of crack cocaine.                  Thus, Jimmy has not made a

threshold showing that his sentence is grossly disproportionate.

See    also    Harmelin       v.    Michigan,   501   U.S.      957,    965-66      (1991)

(upholding finding life sentence without possibility for parole

against a defendant convicted of possessing more than 650 grams of

cocaine not grossly disproportionate).                Neither has he shown that

the district court had discretion to apply the proportionality test

                                            7
set forth in Solem v. Helm, 463 U.S. 277, 292 (1983), or to

consider any mitigating factors before imposing the statutory

mandatory sentence.   Accordingly, Jimmy has not shown that the

district court’s belief that it lacked such discretion is error,

plain or otherwise.

     In sum, the convictions and sentences of both Defendants-

Appellants are, in all respects,

AFFIRMED.




                                   8
