          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                FILED
                                                              October 31, 2007
                               No. 06-11172
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

GERARDO LEYVA

                                         Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:05-CR-122-1


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Gerardo Leyva appeals his jury convictions and sentences for conspiracy
to possess with intent to distribute and distribution of cocaine and money
laundering. Leyva argues that the district court did not have jurisdiction
because the procedure used to enact 18 U.S.C. § 3231 was unconstitutional.
Leyva’s argument is without merit. See, e.g.,United States v. Hunt, 253 F.3d
227, 230 (5th Cir. 2001).



      *
      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should not be published and is not precedent except under the limited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. 06-11172

      Leyva claims that the Government knowingly presented perjured
testimony. The Government presented evidence that established that Navarrete
and Leyva were engaged in a cocaine trafficking scheme, including wiretapped
calls of telephones belonging to Leyva, Navarrete, and Hernandez; drugs,
$155,905 in cash, and a money counter seized from Leyva’s house; as well as the
testimony of other witnesses, including Hernandez.            The record of the
wiretapped telephone calls showed numerous calls between Leyva and
Navarrete concerning sales of cocaine. Leyva has not shown that Navarrete’s
statement, that he used only one cell telephone, was material, i.e., that there is
a reasonable likelihood that Navarrete’s statement affected the judgment of the
jury. See United States v. O’Keefe, 169 F.3d 281, 292 (5th Cir. 1999).
      Leyva argues that the district court erred in finding that some of Leyva’s
prior convictions were not related for purposes of calculating his criminal history
category. We need not decide whether the district court erred in calculating
Leyva’s criminal history category because Leyva was subject to a mandatory
sentence of life imprisonment under 21 U.S.C. § 841(b)(1)(A) based on his two
prior convictions for felony drug offenses. Leyva conceded the validity of the two
prior convictions for felony drug offenses at the sentencing hearing and does not
challenge the imposition of the mandatory life sentence under § 841(b)(1)(A).
      Leyva asserts that the district court erred in sentencing him under the
advisory Sentencing Guidelines and in basing his sentence on drug quantities
that were not charged in the indictment and were not found by the jury beyond
a reasonable doubt. Leyva’s argument is foreclosed by our decision in United
States v. Scroggins, 411 F.3d 572, 576 (5th Cir. 2005). Furthermore, Leyva has
not shown that the district court erred in basing his sentence on its fact findings
concerning the drug quantity involved in the offense. See United States v.
Mares, 402 F.3d 511, 518-19 (5th Cir. 2005).
      AFFIRMED.



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