                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 19, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41203
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RICKEY LYNN WELCH,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                  USDC No. 3:03-CR-12-LED-DDB-1
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Rickey Lynn Welch was found guilty by a jury of counts 4, 2,

and 1 of an indictment charging him with establishment of a place

for the manufacture and distribution of a controlled substance

(count 4), of using, carrying, or possessing a firearm during and

in relation to a drug trafficking crime (count 2), and of

conspiracy to manufacture, distribute or possess with the intent

to manufacture, distribute or dispense methamphetamine (count 1).

Welch was sentenced to concurrent 324-month terms of imprisonment


     *
       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this opinion should not be published and is not precedent except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. 04-41203
                                  -2-

for counts 1 and 4 and to a consecutive 60-month term of

imprisonment for count 2, for a total term of imprisonment of 384

months.   Welch was also ordered to serve concurrent five-year

periods of supervised release.    Welch gave timely notice of his

appeal.

     Welch contends that the Government violated the rule in

Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose

exculpatory evidence to the defense.    Welch’s conclusional

arguments do not demonstrate that favorable evidence was withheld

by the Government or that there is a reasonable probability that

such evidence affected the outcome of the trial.      See Kyles v.

Whitley, 514 U.S. 419, 433–34 (1995).

     Welch contends that the district court erred by overruling

his motion to suppress evidence disclosed to the defense shortly

before the trial — a videotape of a traffic stop, during which

methamphetamine was discovered on Welch’s person, and a lab

report related to the methamphetamine.      Welch contends that the

tardy disclosure prevented him from seeking exclusion of the

evidence and from obtaining expert testimony.     The Government

gave a reasonable explanation for failing to timely produce the

videotape and lab report.    Welch knew of the prior arrest and was

not prevented from seeking exclusion of the evidence.     There is

no reason to believe that an expert would have determined that

the drugs seized were not methamphetamine.     No abuse of

discretion has been shown.    See United States v. Garrett, 238
                           No. 04-41203
                                -3-

F.3d 293, 297–98 (5th Cir. 2000); see also United States v.

Bentley, 875 F.2d 1114, 1118–19 (5th Cir. 1989).

     Welch contended in the district court that various lab

reports should have been suppressed as inadmissible hearsay

because the witnesses called to testify about the reports had not

prepared them.   Welch has reasserted this question on appeal; he

contends also, for the first time on appeal, that admission of

the lab reports violated his rights under the Confrontation

Clause.   We review the constitutional contention for plain error

and the evidentiary question for an abuse of discretion.     See

United States v. Vonn, 535 U.S. 55, 58-59 (2002); United States

v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996).   Because the lab

reports bore adequate indicia of reliability, Welch has not shown

that the district court plainly erred by admitting the evidence

in violation of his rights under this Confrontation Clause.

See Sherman v. Scott, 62 F.3d 136, 140–42 (5th Cir. 1995).     This

court has not determined whether such evidence is admissible

under a recognized exception to the hearsay rule.**   See Sherman,

62 F.3d at 141 (declining to reach issue).   We need not reach

these issues because admission of the evidence did not affect

Welch’s substantial rights.   See id. at 142 n.6.




     **
       It is arguable whether the evidence was admissible under
the public-records or business-records exceptions to the hearsay
rule. See United States v. Quezada, 754 F.2d 1190, 1194 (5th
Cir. 1985); United States v. Cain, 615 F.2d 380, 382 (5th Cir.
1980).
                             No. 04-41203
                                  -4-

     Welch contends that the evidence as to the conspiracy and

firearms counts was insufficient to prove his guilt beyond a

reasonable doubt.    Because Welch failed to renew his objection to

the denial of his motion for a judgment of acquittal after the

defense rested and because no motion was asserted under FED.

R. CRIM. P. 29(c), our review is limited to a determination

whether there was a manifest miscarriage of justice, which will

be found to exist only if the record is devoid of evidence

pointing to guilt.     See United States v. Robles-Pantoja, 887 F.2d

1250, 1254 (5th Cir. 1989).    The record is not “devoid of

evidence” showing that Welch participated in a conspiracy to

manufacture, distribute or possess with the intent to

manufacture, distribute or dispense methamphetamine, in violation

of sections 846 and 841(a)(1).    See id.   Nor is the record

“devoid of evidence” showing that Welch possessed firearms in

furtherance of the drug conspiracy.     See id.

     Welch contends that the district court erred in determining

the drug quantity at sentencing and that his sentence was

determined unconstitutionally in light of Blakely v. Washington,

542 U.S. 296 (2004).    In the interim since the case was briefed,

the Supreme Court extended its holding in Blakely to the federal

sentencing guidelines.     See United States v. Booker, 125 S. Ct.

738, 769 (2005).    Where, as here, a Booker error has been

preserved in the district court, this court “will ordinarily

vacate the sentence and remand, unless [this court] can say the
                           No. 04-41203
                                -5-

error is harmless under Rule 52(a) of the Federal Rules of

Criminal Procedure.”   United States v. Pineiro, 410 F.3d 282, 284

(5th Cir. 2005) (quotation marks omitted).     The Government

concedes that remand is appropriate in this case as it cannot

show beyond a reasonable doubt that the district court would not

have imposed a lesser sentence if it had known that the

guidelines are discretionary.     The convictions are AFFIRMED.   The

sentence is VACATED AND REMANDED for further proceeding in light

of Booker.   See id. at 284–85.    Welch’s other arguments of

sentencing errors are not discussed.     See United States v. Akpan,

407 F.3d 360, 377 n.62 (5th Cir. 2005).

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.
