                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                July 13, 2006
                        FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk
                        ____________________

                            No. 05-60312
                        ____________________


     UNITED STATES OF AMERICA

                                     Plaintiff-Appellee

          v.

     MALCOLM CHARLES HARTZOG
                                     Defendant-Appellant


_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
                      No. 2:04-CR-00022-LG-2
_________________________________________________________________

Before KING, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     Defendant-appellant Malcolm Charles Hartzog was convicted of

conspiring to distribute cocaine hydrochloride and cocaine base

and possession with intent to distribute cocaine hydrochloride.

He was sentenced to a term of life imprisonment for the

conspiracy conviction and a term of 360 months for the possession

conviction.    Hartzog appeals to this court, seeking reversal of



     *
        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that this opinion should not be published and is not precedent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.
his conviction and sentence.   For the reasons stated below, we

AFFIRM.

                         I.    BACKGROUND

     Malcolm Charles Hartzog (“Hartzog”) was charged on August

26, 2004, in three counts of a four-count superseding indictment.

Only two of these counts are relevant to this appeal.   The first

relevant count (“count one”) charged Hartzog with conspiring to

distribute more than 150 kilograms of cocaine hydrochloride and

more than 1.5 kilograms of cocaine base (“crack”), in violation

of 21 U.S.C. §§ 841(a)(1) and 846.   The second relevant count

(“count three”) charged Hartzog and defendant Jackie Newsome

(“Newsome”) with possession with intent to distribute more than

100 grams but less than 500 grams of cocaine hydrochloride, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.   On

September 21, 2004, Hartzog moved to dismiss the indictment

pursuant to the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., and

he filed an amended version of this motion on October 1, 2004.

The district court denied both motions.

     Hartzog’s trial began on November 29, 2004.   The government

did not produce any physical evidence of the drugs described in

the indictment, but relied instead on the credibility of

testimony from cooperating witnesses, confidential informants,

and investigating agents to prove its case.   Among these

witnesses, Hartzog’s fellow defendant Newsome, Mississippi Bureau



                                 2
of Narcotics (“MBN”) agent Marcus Bass (“Bass”), and cooperating

witness Gregory James (“James”) provided testimony highly

relevant to this appeal.

     James, a cocaine dealer, testified that he began secretly

cooperating with MBN agents after his second arrest, in September

2003.   James began by naming both Newsome and Hartzog as his

suppliers.    On October 24, 2003, MBN agents, including Bass,

arranged for James to meet Newsome to conduct a controlled buy.

In order to monitor this controlled buy, the MBN agents outfitted

James with a transmitter and searched him in advance for drugs on

his person.    James testified that he met with Newsome, followed

Newsome to a remote area, and then gave Newsome a sum of money.

Shortly thereafter, Hartzog drove past both James and Newsome and

was identified by James.    According to Newsome’s testimony at

Hartzog’s trial, he then left with James’s money, called Hartzog,

met with Hartzog, and returned to James with cocaine provided by

Hartzog.   When James returned to the MBN agents, he turned over

approximately 124.9 grams of cocaine hydrochloride.

     In addition to their testimony about this controlled buy,

both James and Newsome provided considerable general testimony

about Hartzog’s drug trafficking activities.    At Hartzog’s trial,

James testified that he first met Hartzog in 2002, during a drug

transaction with Newsome.    According to James’s testimony, he

received nine to eighteen ounces of powder cocaine from Newsome



                                  3
and Hartzog once a week.1   James also testified that he arranged

two multi-kilogram cocaine transactions between Hartzog, Newsome,

and a group of “Texans” in the summer of 2003.

     Newsome’s testimony reinforced James’s account.    At

Hartzog’s trial, Newsome testified that he dealt drugs with

Hartzog until his own arrest in February 2004.   More

specifically, Newsome testified to Hartzog’s role in delivering

cocaine to transactions with James.   At the conclusion of

Newsome’s direct testimony, Hartzog’s counsel moved to be

provided with unredacted copies of various agent-prepared

investigative reports, known as DEA-6s, in order to impeach

Newsome’s testimony and the testimony of other prosecution

witnesses.

     Hartzog’s counsel claimed that the government was required

to disclose the reports pursuant to the Jencks Act, 18 U.S.C.

§ 3500, because the reports constituted “statements,” as defined

by the Jencks Act, made by Newsome and other prosecution

witnesses.   In response, the government argued that the DEA-6

reports were not witness “statements” as defined by the Jencks

Act because each report was prepared by an agent rather than a

witness and contained only the agent’s recollection of the

interview.   The district court examined the DEA-6 reports and

     1
        James testified that Hartzog was present at “[m]ainly
every one” of his drug transactions with Newsome, and that during
these purchases, he saw Hartzog give the drugs to Newsome, who
would then give the drugs to James in exchange for money.

                                 4
denied Hartzog’s Jencks Act motion.     Following Newsome’s cross

examination, the government introduced several other cooperating

witnesses who testified about various cocaine transactions

involving Hartzog.

     After the government rested, Hartzog called Special Agent

Karl Winter (“Winter”) to the stand in order to challenge the

testimony of some of the government’s witnesses, based on the

content of the DEA-6 reports Winter had written.    Hartzog then

took the stand in his own defense.    Hartzog testified that he was

not involved in the controlled buy of October 24, 2003, and he

denied engaging in any drug transactions with any of the co-

conspirators named in the indictment.

     Following the government’s rebuttal evidence, the district

court instructed the jury, and both sides presented their closing

arguments.   During their deliberations, the jurors sent a note to

the district judge asking: “Do we have to be unanimous on [the]

amount [of drugs]?”   The district court replied: “Yes.”   Shortly

thereafter, the jury foreperson sent a second note, which stated:

“I believe we will be unable to agree unanimously on the amount.”

     The district court then called the jury foreperson to

discuss the verdict form.   The foreperson informed the district

court that the jury had reached unanimity on the first and fourth

questions of the special verdict form, which dealt with Hartzog’s

guilt or innocence on the conspiracy and possession with intent

to distribute charges.   The foreperson also informed the district

                                 5
court that the jury was unable to reach unanimity on the second

and third questions of the special verdict form, which required

the jury to determine what quantities of cocaine hydrochloride

and crack Hartzog had conspired to distribute.    Both the second

and third questions allowed the jurors to select “none” as a

response.    After this exchange, the district court simply

instructed the jury to return to its deliberations.    Over two

hours later, the jury unanimously found Hartzog guilty of the

conspiracy and possession counts of the indictment discussed

above.    The jury also found that Hartzog’s conspiracy conduct

involved less than 500 grams of cocaine hydrochloride and more

than fifty grams of crack.

       On March 7, 2005, the district court sentenced Hartzog to a

term of life imprisonment and a term of 360 months for the

possession conviction.    Hartzog filed a motion for a new trial

and a motion for judgment notwithstanding the verdict on March 9,

2005.    The district court denied both motions the following day.

On April 12, 2005, Hartzog filed a notice of appeal to this

court, challenging the jury verdict and seeking relief from his

conviction and sentence.

                           II.   DISCUSSION

A.     Hartzog’s Jencks Act Claim

       Hartzog raises two claims in this appeal based on the Jencks

Act.    First, he claims that the Jencks Act required Hartzog’s



                                    6
prosecutors to disclose unredacted versions of the DEA-6 reports

because these reports contained information provided by

cooperating witnesses that could have been used for impeachment

purposes.   To support his claim that these DEA-6 reports

constituted “statements” as defined by 18 U.S.C. § 3500(e),

Hartzog points out that the government referred to them as

statements during his trial.   Second, Hartzog claims that the

district court erred in denying his objection without conducting

an in camera review to determine if the DEA-6 reports contained

“statements,” as defined by the Jencks Act.   To support this

second claim, Hartzog refers to our opinion in United States v.

Conroy, 589 F.2d 1258, 1272-73 (5th Cir. 1979), in which we

vacated and remanded a trial court’s judgment based on that

court’s failure to examine material allegedly covered by the

Jencks Act.

     In response, the government contends that Hartzog has failed

to show that the DEA-6 reports were witness “statements” as

defined by § 3500(e), because Hartzog has not made a showing that

the reports were ever read or adopted by the witnesses.     The

government also claims that Conroy is inapposite because the

district court in this matter, unlike the court in Conroy,

actually examined the DEA-6 reports before denying Hartzog’s

motion.

     We review the district court’s determination that a DEA-6

report did “not constitute a ‘statement’ requiring disclosure

                                 7
under the Jencks Act for clear error.”   United States v. Brown,

303 F.3d 582, 591 (5th Cir. 2002); see also United States v.

Durham, 587 F.2d 799, 802 (5th Cir. 1979) (“We will not overturn

a trial court’s ruling that reports are not statements under the

Jencks Act unless that finding is clearly erroneous.”).

Moreover, even when the government is found to have violated the

Jencks Act, that failure is subject to harmless error analysis.

See United States v. Martinez, 151 F.3d 384, 391 (5th Cir. 1998)

(finding no indication that a Jencks Act violation occurred, but

quoting United States v. Beasley, 576 F.2d 626, 629 (5th Cir.

1978), and “reiterat[ing] this circuit’s holding” that “‘the

harmless error doctrine must be strictly applied in Jencks Act

cases’”).

     Hartzog’s first claim is misplaced; the DEA-6 reports are

not “statements” as defined by the Jencks Act.   The Jencks Act

defines the term “statement” thusly:

     The term “statement,” as used in . . . this section in
     relation to any witness called by the United States,
     means--
     (1) a written statement made by said witness and signed
     or otherwise adopted or approved by him;
     (2) a stenographic, mechanical, electrical, or other
     recording, or a transcription thereof, which is a
     substantially verbatim recital of an oral statement made
     by said witness and recorded contemporaneously with the
     making of such oral statement; or
     (3) a statement, however taken or recorded, or a
     transcription thereof, if any, made by said witness to a
     grand jury.

18 U.S.C. § 3500(e).   We have applied this provision and held

that in order for “interview notes” such as the DEA-6 reports at

                                 8
issue in this appeal “to qualify as a statement under

§ 3500(e)(1) the witness must have signed, read, or heard the

entire document read.”     United States v. Pierce, 893 F.2d 669,

675 (5th Cir. 1990) (citing United States v. Hogan, 763 F.2d 697,

704 (5th Cir. 1985)).    The witnesses did not sign or otherwise

verify these DEA-6 reports.     Moreover, we have held in the past

that “DEA-6 reports are not verbatim accounts” but are rather

“‘short, concise, summaries of the witnesses’ version of the

facts as recounted to the agents.’”       United States v. Weintraub,

871 F.2d 1257, 1260 (5th Cir. 1989) (quoting United States v.

Merida, 765 F.2d 1205, 1215 (5th Cir. 1985)).      Hartzog has not

shown that the DEA-6 reports at issue in this appeal depart from

the norm and provide substantially verbatim accounts of the

witnesses’ version of the facts.       Because Hartzog has failed to

show that the DEA-6 reports qualify as statements under the

Jencks Act, he has failed to show that a violation of the Jencks

Act occurred.

     Hartzog’s second claim is also misplaced because Conroy is

inapposite.     In Conroy, the trial court completely failed to

review any of the documents at issue and relied entirely on the

government’s assertions.     See 589 F.2d at 1273 (stating that

“where the court fails even to look at the complete materials,

thereby abdicating its responsibility to government counsel, the

reviewing court has no choice but to vacate the judgment and

remand for an appropriate examination”).      In contrast, the

                                   9
district court in this matter reviewed the redacted DEA-6 reports

and made specific findings that the reports did not contain

“statements” as defined by the Jencks Act.   Because the district

court carefully reviewed the DEA-6 reports before denying

Hartzog’s Jencks Act motion, Hartzog has failed to show that the

district court’s failure to hold an in camera review was

reversible error.

B.   Hartzog’s Brady Claim

     Hartzog also claims that the district court’s failure to

disclose the unredacted DEA-6 reports violated his due process

rights established by Brady v. Maryland, 373 U.S. 83 (1963), and

Giglio v. United States, 405 U.S. 150 (1972).   The Brady rule,

which requires the government to disclose evidence favorable to

the accused and material to guilt or to punishment, also

“encompasses evidence concerning the reliability of a witness

that may be determinative of guilt or innocence.”   United States

v. Garcia, 917 F.2d 1370, 1375 (5th Cir. 1990) (citing Giglio,

405 U.S. at 154).   Hartzog now claims that the government’s

failure to disclose the unredacted DEA-6 reports deprived him of

potentially exculpatory impeachment evidence.

     In response, the government argues that Hartzog failed to

establish a sufficient record for our review of this Brady claim

because he did not ask the district court to include the

unredacted DEA-6 reports in the record.   In addition, the



                                10
government argues that Hartzog has failed to demonstrate that any

of the withheld information would have made a material difference

to his defense.    See, e.g., United States v. Lowder, 148 F.3d

548, 551 (5th Cir. 1998) (rejecting Brady claims because, even

assuming that the government withheld potential impeachment

evidence, the evidence was immaterial as the government’s case

“consisted of testimony from numerous witnesses”).

       We review “allegations of Brady violations de novo.”   United

States v. Infante, 404 F.3d 376, 386 (5th Cir. 2005).    To prevail

on a Brady claim, a defendant such as Hartzog must satisfy a

three-part test: “(1) the prosecution did not disclose evidence;

(2) the evidence was favorable to the defense; and (3) the

evidence was material--i.e., there is a reasonable probability

that if the government had disclosed the evidence, the result of

the proceeding would have been different.”    Infante, 404 F.3d at

386.    This reasonable probability has been defined as “a

probability sufficient to undermine confidence in the outcome.”

United States v. Holley, 23 F.3d 902, 914 (5th Cir. 1994)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

       We have reviewed the redacted reports, and we conclude that

the withheld information is non-material.    Virtually all of the

redacted information relates to witness identity: for the most

part, only the names of certain informants have been redacted; in

a few instances, additional identifying information such as



                                 11
addresses or phone numbers have also been redacted.    “We fail to

see how access” to these minor omissions “could have been of any

real value” to Hartzog’s defense, “even for impeachment

purposes.”     United States v. Sink, 586 F.2d 1041, 1051 (5th Cir.

1998).    Accordingly, we hold that Hartzog’s Brady claim is

without merit.

C.     Hartzog’s Speedy Trial Act Claim

       Hartzog also claims that the district court erred in failing

to dismiss this case pursuant to the Speedy Trial Act, 18 U.S.C.

§ 3161.    In this appeal, Hartzog claims that his prosecution

involved two separate violations of the Speedy Trial Act.      First,

Hartzog argues that his prosecution violated the Speedy Trial Act

because over thirty days elapsed between the filing of the

criminal complaint on June 21, 2004, and the filing of the

superseding indictment on August 26, 2004.    Hartzog also argues

that the district court erred in granting the government a

continuance.    He claims that this error caused over seventy days

to elapse between the filing of the complaint and the

commencement of his trial, which also violated the Speedy Trial

Act.

       The government responds by arguing that Hartzog’s claims

fail to account for the specific exceptions which served to toll

the time limitations of the Speedy Trial Act in this case.

First, the government argues that the filing of the initial



                                  12
indictment on June 23, 2004, tolled the thirty day arrest-to-

indictment clock.   Citing this court’s decision in United States

v. Perez, 217 F.3d 323, 329 (5th Cir. 2000), the government

points out that although the superseding indictment increased the

drug quantities alleged, both the original and superseding

indictments charged the same offenses, and therefore no violation

of the Speedy Trial Act occurred.       Second, the government points

out that even without considering the district court’s September

8, 2004, order granting a continuance, Hartzog’s trial still

occurred within the seventy-day limit set forth by the Speedy

Trial Act, because the district court properly excluded several

time periods based on motions filed by Hartzog.

     The Speedy Trial Act requires that an “indictment charging

an individual with the commission of an offense shall be filed

within thirty days from the date on which such individual was

arrested or served with a summons in connection with such

charges.”   18 U.S.C. § 3161(b).    When, as here, the government

files a superseding indictment based on the same criminal

transaction, and the superseding indictment is filed more than

thirty days after the defendant’s arrest, the filing of the

original indictment tolls the thirty-day limit set forth in the

statute.    Perez, 217 F.3d at 328-29.    Therefore, the district

court correctly declined to dismiss the superseding indictment

based on the Speedy Trial Act.


                                   13
     The Speedy Trial Act also requires that “the trial of a

defendant . . . shall commence within seventy days from the

filing date . . . of the . . . indictment, or from the date the

defendant has appeared before a judicial officer of the court in

which such charge is pending, whichever date last occurs.”     18

U.S.C. § 3161(c)(1).    However, several “periods of delay” are

“excluded . . . in computing the time within which the trial of

any such offense must commence[,]” including a “delay resulting

from any pretrial motion, from the filing of the motion through

the conclusion of the hearing on, or other prompt disposition of,

such motion . . . .”    18 U.S.C. § 3161(h), (h)(1)(F).   We have

held that “[o]bviously any pretrial motion leveled at dismissing

th[e] indictment counts as excludable time under 18 U.S.C.

§ 3161(h)(1)(F).”     United States v. Castellano, 848 F.2d 63, 65

(5th Cir. 1988).    Here, as in Castellano, there was no violation

of the seventy-day time limit of the Speedy Trial Act because the

district court properly excluded several periods for delay when

it considered Hartzog’s pretrial motions.

D.   Hartzog’s Remaining Claims

          1.      Hartzog’s Verdict Form Claim

     Hartzog claims that the district court’s special verdict

form allowed the jury to consider quantities of cocaine that

conflicted with the quantities charged in the conspiracy count of

the indictment.    He also claims that the district court failed to


                                  14
require the jury to find the drug quanties beyond a reasonable

doubt.   Hartzog concludes that these alleged errors require

reversal based on our holdings in United States v. Randle, 259

F.3d 319 (5th Cir. 2001), withdrawn and superseded on reh’g, 304

F.3d 373 (5th Cir. 2002), and United States v. Burton, 237 F.3d

490 (5th Cir. 2000) (per curiam).

     Hartzog’s conclusion is incorrect because the district

court’s jury instruction was consistent with the guidelines

provided in FIFTH CIRCUIT PATTERN JURY INSTRUCTION (Criminal) § 2.89

and expressly approved by this court in United States v. Arnold,

416 F.3d 349, 356 (5th Cir. 2005) (stating that “[t]his approach

--using a special interrogatory to determine drug quantity--is

endorsed in the note to Fifth Circuit Pattern Instruction § 2.89,

and we find its use appropriate”).       Furthermore, Randle and

Burton, the cases relied upon by Hartzog, are inapposite.        In

Randle, “the district judge did not instruct the jury to

determine the quantity of crack cocaine” for which the defendant

was responsible.   259 F.3d at 320.      Similarly, in Burton, “the

quantity of cocaine base possessed with intent to distribute

. . . was neither charged in the indictment nor proven to the

jury beyond a reasonable doubt.”       237 F.3d at 491.   In contrast,

the district court in this matter submitted the drug quantity to

the jury, and the jury reached conclusions beyond a reasonable

doubt on the quantity issue using the verdict form.       Therefore,

the verdict form does not require reversal.

                                  15
            2.   Hartzog’s Drug Quantity Claim

     Hartzog also claims that the district judge’s responses to

the jury’s questions and the district judge’s exchanges with the

jury’s foreperson require reversal.   More specifically, Hartzog

argues that because the district judge did not reiterate that

“none” was an option on the drug quantity issue--even though

“none” was clearly provided as an option in the written

instruction--the conviction should be reversed.

     In general, district courts enjoy “wide latitude in deciding

how to respond to questions from a jury . . . .”     United States

v. Cantu, 185 F.3d 298, 305-06 (5th Cir. 1999).    The district

court’s straightforward exchange with the jury in this case fits

well within the acceptable latitude established by our precedent.

Moreover, the very case Hartzog relies upon, United States v.

Natale, 764 F.2d 1042 (5th Cir. 1985), actually undercuts his

position.    In Natale, we rejected a defendant’s argument that a

supplemental jury instruction was erroneous because it did not

adequately refer to the original instruction.     Instead, we held

that the trial court’s “response was carefully constructed to

avoid favoring either side,” and we declined to require the trial

court to “redefine” a term appearing in the original instruction.

Natale, 764 F.2d at 1047.    As in Natale, the district court in

this matter provided a carefully constructed, neutral response

that did not favor either side, and it was not required to



                                 16
redefine or reiterate a term which appeared in the original

instruction.

            3.   Hartzog’s Beyond a Reasonable Doubt Claim

     Hartzog argues, without legal citation, that the district

court violated his due process rights by instructing the jury

that proof beyond a reasonable doubt “is proof of such a

convincing character that you would be willing to rely and act

upon it without hesitation in the most important of your

affairs.”    Hartzog failed to object to this reasonable doubt

instruction at trial, so we review this claim for plain error.

Hartzog has not demonstrated any error, much less plain error, as

the district court’s instruction was taken directly from the

FIFTH CIRCUIT PATTERN JURY INSTRUCTION (Criminal) § 1.05.

            4.   Hartzog’s Sufficiency of the Evidence Claim

     Hartzog also argues that the record was insufficient to

convict him of conspiracy to distribute cocaine.        To support this

argument, he claims that the prosecution’s witnesses were not

credible, and he also points to the lack of physical evidence to

support their testimony.     We “review the evidence to determine

whether ‘a rational jury could have found the essential elements

of the offenses beyond a reasonable doubt.’”        United States v.

Pompa, 434 F.3d 800, 806 (5th Cir. 2005) (quoting United States

v. Dean, 59 F.3d 1479, 1484 (5th Cir. 1995)).        In the course of

this review, we “draw[] all reasonable inferences in favor of the



                                   17
jury’s verdict.”    United States v. Alix, 86 F.3d 429, 435-36 (5th

Cir. 1996).    Moreover, we will not consider Hartzog’s credibility

argument on appeal: “‘[c]redibility issues are for the finder of

fact and do not undermine the sufficiency of the evidence.’”

Martinez, 151 F.3d at 389 (quoting United States v. Morgan, 117

F.3d 849, 854 n.2 (5th Cir. 1997)).

     Hartzog is also incorrect that the jury’s verdict is

insupportable because of the lack of physical evidence.    Physical

evidence is not required for a narcotics conviction, and we have

held that even the testimony of a single witness “was in itself

sufficient to convict” a defendant of similar crimes.     United

States v. Ramirez, 145 F.3d 345, 351 (5th Cir. 1998); see also

United States v. Westbrook, 119 F.3d 1176, 1190 (5th Cir. 1997)

(upholding a verdict based on the testimony of co-conspirators

even though police did not find the defendant in possession of

crack).   As in Westbrook, the jury’s guilty verdict in this

matter is supported by “voluminous” testimony, and we decline to

disturb it.

          5.     Hartzog’s Sentencing Claim

     Finally, Hartzog raises two sentencing issues.   First, he

contends that the district court erred by reaching a different

fact finding conclusion on the drug quantity issue than the jury,

thereby violating his Sixth Amendment rights under United States

v. Booker, 543 U.S. 220 (2005).    Second, Hartzog argues that the



                                  18
district court erred in applying a four-level sentencing

enhancement under the U.S. SENTENCING GUIDELINES MANUAL § 3B1.1 (2004)

[hereinafter U.S.S.G.].    Hartzog argues that this enhancement

also violated Booker’s standard because the district court judge,

rather than the jury, made the findings necessary to support the

enhancement.2

     Hartzog’s first sentencing argument--that the district court

erred by adjusting his sentence based on facts neither admitted

by him nor proven beyond a reasonable doubt to the jury--is

incorrect.   As we recently explained, the sentencing guideline

range “‘should be determined in the same manner as before

Booker/Fanfan’ and . . . a judge may still find all the facts

supporting a sentence.”    United States v. Duhon, 440 F.3d 711,

715-16 (5th Cir. 2006) (quoting United States v. Mares, 402 F.3d

511, 519 (5th Cir. 2005)); see also United States v. Alonzo, 435

F.3d 551, 553 (5th Cir. 2006) (stating that, “[c]ontrary to [the


     2
        In his brief, Harztog also discusses the retroactivity
of Booker and the district court’s use of his prior convictions
to enhance his sentence. It is not clear whether he intends to
challenge his sentence on these grounds; regardless, both claims
are foreclosed by Supreme Court and circuit precedent. See
Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998)
(treating the fact of a prior conviction as a permissible
sentencing factor that need not be admitted by the defendant or
found by the jury beyond a reasonable doubt); United States v.
Alfaro, 408 F.3d 204, 211 (5th Cir. 2005) (noting post-Booker
that “Almendarez-Torres has not been overruled and is still good
law”); United States v. Austin, 432 F.3d 598, 599 (5th Cir. 2005)
(concluding that there was no ex post facto problem with the
district court’s application of the remedial holding of Booker at
sentencing).

                                  19
defendant’s] argument, ‘Booker contemplates that, with the

mandatory use of the Guidelines excised, the Sixth Amendment will

not impede a sentencing judge from finding all facts relevant to

sentencing’”) (quoting Mares, 402 F.3d at 519).     Therefore, the

district court acted within the confines of Booker when it

determined that the evidence presented against Hartzog supported

the drug quantities alleged in the indictments.

     Hartzog’s second sentencing argument is similarly misplaced.

U.S.S.G. § 3B1.1(a) instructs a sentencing court to increase a

defendant’s offense level by four levels “[i]f the defendant was

an organizer or leader of a criminal activity that involved five

or more participants or was otherwise extensive.”    We review a

“district court’s determination that a defendant was a leader or

organizer under U.S.S.G. § 3B1.1(a) [as] a factual finding . . .

for clear error.”    United States v. Villanueva, 408 F.3d 193, 204

(5th Cir. 2005).    The testimony submitted at trial indicated that

Hartzog was the primary supplier of substantial quantities of

cocaine for over five individuals; therefore, the district

court’s sentencing enhancement under § 3B1.1 was not error, much

less plain error.

                          III.   CONCLUSION

     For the reasons stated above, Hartzog’s conviction and

sentence are AFFIRMED.




                                  20
