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

                                                                      Charles R. Fulbruge III
                                                                              Clerk
                                 No. 05-40935
                               Summary Calendar


UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

versus

JONATHAN PINEDA-DIAZ,

                                               Defendant-Appellant.

                            --------------------
                Appeal from the United States District Court
                     for the Southern District of Texas
                               (2:04-CR-708-4)
                            --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

       Defendant-Appellant Jonathan Pineda-Diaz appeals his jury

trial conviction for possession with intent to distribute marijuana

and conspiracy to possess marijuana thusly.                  He contends that

reversible       error   resulted      when   the   government,    while     cross-

examining       him,   referred   to    out-of-court     statements     of   a   co-

conspirator who was not present to testify.              Pineda objected to the

line       of   questioning,   and     the    district   court    sustained      his

objection.



       *
       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this opinion should not be published and is not precedent except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.
     Assuming without deciding that the questioning was improper,

we conclude that “the evidence as a whole before the jury was

sufficiently convincing of guilt as to overcome any error committed

by the government during its cross-examination.” See United States

v. Smith-Bowman, 76 F.3d 634, 636-37 (5th Cir. 1996); United States

v. Pepper, 51 F.3d 469, 472 (5th Cir. 1995).         Accordingly, any

error   resulting   from   the   prosecutor’s   cross-examination   was

harmless.   Pineda’s conviction and sentence are

AFFIRMED.




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