               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 01-20499
                          Summary Calendar



UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

                                versus

ABSALON MURILLO-GAMBOA,

          Defendant-Appellant.



          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-00-CR-30-6

                            March 1, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Absalon   Murillo-Gamboa    appeals     his   jury   conviction      and

sentence for conspiracy to possess with intent to distribute five

kilograms or more of cocaine and 50 grams or more of cocaine base

and aiding and abetting possession with intent to distribute five

kilograms or more of cocaine.

     Murillo-Gamboa   argues    that   the   district     court   erred   in

admitting his in-court identification because the photograph array

     *
      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this opinion should not be published and is not precedent except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.
was impermissibly suggestive and because the witness saw Murillo-

Gamboa outside the courtroom during the trial.                   Where the police

have       not   preserved    the   photograph    array   used     in   a   pretrial

photographic line-up, as occurred here, this court presumes that

the array is impermissibly suggestive.1                   However, because the

totality of the circumstances demonstrates that the display did not

pose        a      very      substantial       likelihood     of        irreparable

misidentification, the admission of the identification was not

error.2          We also conclude that the fact that the witness saw

Murillo-Gamboa outside of the courtroom was not impermissibly

suggestive         and    did    not   create      a   substantial          risk   of

misidentification.3

       Murillo-Gamboa also argues that the transcripts of wiretap

recordings with notes identifying the speakers should not have been

admitted.          The district court did not abuse its discretion in

admitting these transcripts and the supporting testimony of an

agent because the government satisfied the requirements of Federal

Rule of Evidence 901(b)(5).4




       1
            United States v. Honer, 225 F.3d 549, 552 (5th Cir. 2000).
       2
       See United States v. Burbridge, 252 F.3d 775, 780 (5th Cir.
2001); Honer, 225 F.3d at 553-54.
       3
            See Thompson v. Miss., 914 F.2d 736, 739 (5th Cir. 1990).
       4
            See United States v. Lampton, 158 F.3d 251, 259 (5th Cir.
1998).

                                           2
      Finally, Murillo-Gamboa argues that the district court erred

in applying a three-level increase pursuant to U.S.S.G. § 3B1.1(b)

because of his role as a manager or supervisor.          Where the district

court permissibly adopted the findings of the PSR in the absence of

any rebuttal evidence offered at sentencing by Murillo-Gamboa,5 we

conclude that the district court did not clearly err in light of

the   evidence    in   the   record   that,   inter   alia,   Murillo-Gamboa

directed others to transport the cocaine in a transaction involving

at least five participants.6

      AFFIRMED.




      5
        See United States v. Davis, 226 F.3d 346, 360 (5th Cir.
2000), cert. denied, 531 U.S. 1181 (2001).
      6
       See United States v. Miranda, 248 F.3d 434, 447 (5th Cir.),
cert. denied, 122 S. Ct. 410 (2001), and cert. denied, 122 S. Ct.
823 (2002); United States v. Sylvester, 143 F.3d 923, 931 (5th Cir.
1998).

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