                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT

                           _____________________

                                No. 99-11409
                           _____________________



UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

GENICE STRIBLING

                                             Defendant-Appellant.
_________________________________________________________________

      Appeal from the United States District Court for the
                Northern District of Texas, Dallas
                     USDC No. 3:99-CR-111-3-P
_________________________________________________________________
                          April 19, 2001

Before FARRIS,* JOLLY, and DAVIS, Circuit Judges.

PER CURIAM:**

     Genice Stribling appeals her conviction and sentence for

distribution     and    conspiracy    to   distribute   cocaine   base,   in

violation   of     21     U.S.C.     §§    841(a)(1),   841(b)(1)(A)(iii),

841(b)(1)(B)(iii) and 846.         Specifically, she challenges:    (1) the

denial of a motion for a new trial, based on the court’s refusal to

grant Stribling’s third and fourth requests for funds for an

     *
     United States Circuit Judge of the Ninth Circuit, sitting by
designation.
     **
      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this opinion should not be published and is not precedent except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.
investigator; (2) the admission of a statement at trial as an

exception to the hearsay rule; (3) her sentence, in the light of

the fact that the jury did not find a specific drug quantity; (4)

the constitutionality of 21 U.S.C. §§ 841(a) and (b); and (5) the

district court’s failure to consider the Bureau of Prison’s ability

to care for Stribling during the sentencing phase.           We affirm the

conviction, but modify the term of Stribling’s supervised release.

                                      I

     Stribling first claims that the district court’s failure to

provide funding for the services of an investigator constitutes

grounds for a new trial.      Under 18 U.S.C. § 1306A(e)(1), a district

court can provide defendants with funds to hire an investigator

when they are financially unable to do so.      The defendant bears the

burden   of   demonstrating    with   specificity   the    reason   why   the

services of an investigator are necessary.                United States v.

Gadison, 8 F.3d 186, 191 (5th Cir. 1993). We review both the

district court’s refusal to grant a new trial and its decision not

to provide funds for an investigator for abuse of discretion.             See

Gadison, 8 F.3d at 191; United States v. Cantu, 167 F.3d 198, 201

(5th Cir. 1999).

     The district court granted Stribling’s first two requests for

investigatory funds, but denied her third and fourth requests for

funds to hire a private investigator.         The court noted that her

requests were “devoid of specifics as to what specific services the

private investigator was to perform and how those services are

                                      2
necessary;” that she had two attorneys representing her; that her

case was not complex; and that she had access to witness testimony

from the trial of her daughter and co-defendant, Sharanda Jones, at

which her lawyers were present. Stribling contends that because of

the lack of funds, she was unable to investigate three government

witnesses who provided prejudicial testimony.                 Stribling, however,

failed    to    demonstrate     what     investigative         efforts    had   been

exhausted, why her attorneys could not perform the necessary

investigation, or why the funds provided her were insufficient to

cover further investigation.           The district court did not abuse its

discretion in denying Stribling’s additional requests for funds for

an investigator.        Furthermore, Stribling had the opportunity to

impeach the witnesses she did not interview, and copious evidence

of her guilt was presented at trial.            Additional investigation is

most unlikely to have resulted in acquittal.                  See United States v.

Lowder,   148    F.3d   548,   551     (5th   Cir.   1998)(noting        that   newly

discovered evidence warrants a new trial only if, among other

factors, the new evidence would “probably produce an acquittal”).

Thus, the district court did not abuse its discretion by refusing

to grant Stribling’s motion for a new trial.

                                         II

     Stribling next argues that her conviction should be reversed

because the district court erred in admitting the April 6, 1999,

written   statement      of    Kelly    Douglas      as   a    “prior    consistent

statement,” (which, of course, is not considered hearsay under

                                         3
Federal    Rule   of   Evidence      801(d)(1)(B)).       As    the    Government

acknowledges, introduction of the statement, which was made after

Douglas changed her statements to the DEA in an effort to cooperate

with the government, was improper.           See Tome v. United States, 513

U.S. 150 (1995) (prior consistent statements are admissible only if

they are made prior to the alleged fabrication or motive to

fabricate).

      Errors in admissions under Rule 801 are reviewed for harmless

error. United States v. Powers, 168 F.3d 741, 750-51 (5th Cir.

1999). “Harm will be found only if the evidence had a ‘substantial

impact’ on the jury's verdict.”          United States v. Dickey, 102 F.3d

157, 163 (5th Cir. 1996).         Douglas’s April 6, 1999, statement was

largely repetitive of a statement she gave to the DEA on December

10,   1998,    implicating    Stribling      in   drug    dealing.      Stribling

impeached Douglas’s testimony at trial with two statements that

Douglas had made indicating that Stribling was not involved in drug

dealing, as well as Douglas’s motive to lie.               While the April 6,

1999, statement may have been slightly more detailed than Douglas’s

testimony or the December statement, these extra details in a

statement     that   was   largely    cumulative    could      not    have   had   a

substantial impact on the jury’s verdict. Furthermore, Douglas was

just one of many witnesses who tied Stribling to drug dealing.                 The

district    court’s    erroneous      admission    of    the   April    6,   1999,

statement was harmless error.

                                       III

                                        4
     Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000),

Stribling next challenges the validity of her sentence.   Although

the indictment mentioned specific drug quantities, the district

court failed to state the specific quantity of drugs when it

instructed the jury as to the essential elements of the offense

that the jury was required to find beyond a reasonable doubt.

Because Apprendi requires that any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be alleged

in the indictment and proved to a jury beyond a reasonable doubt,

the district court erred in failing to instruct on drug quantity.

See United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000),

cert. denied, 121 S.Ct. 1152 (2001).    A fact used in sentencing

that does not increase a penalty beyond the statutory maximum,

however, does not need to be proved to a jury beyond a reasonable

doubt.   United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000)

cert. denied, 121 S.Ct. 1163 (2001).

     Stribling objected to the jury instructions at sentencing, and

thus, her sentencing challenge is reviewed do novo.   United States

v. Garcia, 242 F.3d 593 (5th Cir. 2001) (“Defendant challenged his

sentence . . . at the sentencing hearing.   Thus, he has adequately

preserved error, and the issue is before us on de novo review.”).

As Stribling recognizes, her 204 month prison term does not exceed

the twenty year maximum term of 21 U.S.C. § 841(b)(1)(C) and,

therefore, does not violate Apprendi.   Stribling’s five year term

of supervised release, however, exceeds the three year statutory

                                 5
maximum provided by 18 U.S.C. § 3583(b)(2), which is applied to

convictions under 21 U.S.C. § 841(b)(1)(C).                See Doggett, 230 F.3d

at 165 n.2; United States v. Kelly, 974 F.2d 22, 24 (5th Cir.

1992). Accordingly, Defendant’s term of supervised release must be

reduced from five years to no more than three years.***

       Stribling also argues that Apprendi renders 21 U.S.C. § 841(a)

and (b) unconstitutional, because we previously ruled that Congress

intended drug quantity to be a sentence enhancement factor rather

than an element of the offense.              We rejected this constitutional

challenge in United States v. Slaughter, 238 F.3d 580, 582 (5th

Cir. 2001).

                                        IV

       Finally, Stribling contends that the district court’s refusal

to    depart   downward     on   her   sentence      was   based   on   materially

erroneous assumptions, in violation of due process. Stribling is a

bed-bound quadriplegic who requires constant medical attention.

She   argues   that,   in    ruling    that    the    prison   system    had   “the


       ***
       The government suggests that we could reduce the term of
supervised release to three years without remanding the case,
because the minimum term of three years of supervised release under
§ 841(b)(1)(C) and the maximum term of three years of supervised
relief under § 3583(b)(2) leave the district court with no
discretion to impose any other term of supervised release. See
Doggett, 230 F.3d at 165 n.2 (modifying the term of supervised
release to    three   years   without   remanding   the  case   for
resentencing). Stribling, however, contends that she qualifies for
the safety valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. §
5C1.2, and is therefore not subject to any mandatory minimum terms
of supervised release. We leave this for the district court to
consider on remand.

                                         6
capacity, the facilities, to deal with Ms. Stribling’s condition,”

the district court did not consider the adequacy of medical care at

FMC    Carswell,    the   only   medical    facility    for    female   federal

prisoners. Stribling also moves to supplement the record with

newspaper articles and affidavits about the poor quality of medical

care at FMC Carswell.

       A district court is entitled to depart downward from the

applicable sentencing range in the sentencing guidelines in the

case of an “extraordinary physical impairment” when, for instance,

“home detention may be as efficient as, and less costly than,

imprisonment.”      U.S.S.G. § 5H1.4.        In this circuit, we have no

jurisdiction to review a district court’s discretionary decision

not to depart downward absent a court’s misunderstanding of the

law.    United States v. Dadi, 235 F.3d 945, 954 (5th Cir. 2000).

Thus,    although    we    can   consider     Stribling’s       constitutional

challenge, we cannot review the district court’s failure to depart

downward in calculating Stribling’s sentence.

       Stribling correctly notes that a sentence based upon erroneous

and material information violates due process.                United States v.

Mueller, 902 F.2d 336, 347 (5th Cir. 1990).            We accept the district

court’s findings of fact relating to sentencing, however, unless

clearly erroneous.        United States v. Deavours, 219 F.3d 400, 402

(5th Cir. 2000). Although the adequacy of Stribling’s medical care

is now disputed, Stribling fails to meet her burden of showing that

the district court’s findings of fact were clearly erroneous or

                                      7
that “the district court relied on materially untrue information”

when it refused to reduce her sentence based on her medical

condition.   Id.    We therefore uphold the term of Stribling’s

incarceration and deny her motion to supplement the record.

                                 V

     For the reasons stated above, we AFFIRM Stribling’s conviction

and the district court’s denial of Stribling’s motion for a new

trial. We also AFFIRM Stribling’s sentence, except for the term of

supervised release, which we VACATE and REMAND to the district

court for resentencing consistent with this opinion.

                   AFFIRMED in part; VACATED and REMANDED in part.




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