                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                          June 27, 2005

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                  No. 04-20037
                                Summary Calendar


UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

versus

JOSE DE JESUS GARCIA-FLORES;
ORLANDO ACOSTA-GARCIA,

                                            Defendants-Appellants.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. 4:03-CR-257-1
                         --------------------

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Jose De Jesus Garcia-Flores (Garcia) and Orlando Acosta-Garcia

(Acosta)   appeal      their    convictions   and   sentences    imposed      for

conspiracy to harbor and transport undocumented aliens and five

counts of aiding and abetting the harboring of undocumented aliens

for financial gain.          Garcia and Acosta were each sentenced to a

term of imprisonment of 27 months on each count to be followed by

three-year     terms    of     supervised   release,   all   terms      to    run

concurrently.


     *
        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this opinion should not be published and is not precedent except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. 04-20037
                                       -2-

     Acosta argues that the Government failed to prove that he was

involved in the smuggling conspiracy.            Viewed in the light most

favorable   to   the    verdict,    the   evidence   was   sufficient   for a

rational jury to find beyond a reasonable doubt that Acosta aided

or abetted or agreed to participate in a conspiracy among smugglers

to transport illegal aliens into the United States for financial

gain and that Acosta concealed, harbored and shielded the aliens

from detection after they arrived in the country.                  Jackson v.

Virginia, 443 U.S. 307, 319 (1979); 8 U.S.C.

§ 1324(a)(1)(A)(ii), (v)(I),(II), (B)(ii).

     The evidence that Acosta assisted the aliens in bypassing the

Border Patrol checkpoint reflected Acosta’s knowledge that he was

harboring aliens who were illegally in this country.              The evidence

further showed that Acosta gave the aliens directions about how not

to be detected and provided the aliens with food, water, and

medication.      The evidence showed that the aliens had to provide

payment for the smuggling assistance.             The testimony concerning

Acosta’s involvement in the scheme provided by Alfredo Gordillo-

Gonzalez, who voluntarily returned to the United States to testify,

was corroborated by Dilican Yadira Moncada-Cornejo’s and Jose

Trinidad    Ramos’     versions    of   the   events.      The   evidence   was

sufficient for a reasonable jury to determine beyond a reasonable

doubt that Acosta conspired and aided and abetted in the harboring

of undocumented aliens.
                               No. 04-20037
                                    -3-

     Garcia argues that the evidence was insufficient to support

his conviction for count six, harboring an undocumented alien,

Sonia Maricela Lopez-Cortez, because the Government failed to prove

beyond a reasonable doubt that Lopez-Cortez was an undocumented

illegal alien.       Under the concurrent sentencing doctrine, “an

appellate court may decline to hear a substantive challenge to a

conviction when the sentence on the challenged conviction is being

served concurrently with an equal or longer sentence on a valid

conviction.”      United States v. Ware, 282 F.3d 902, 906 (5th Cir.

2002) (internal quotations and citation omitted).            Garcia received

concurrent     27-month    sentences   on    all   counts.        Because    the

assessments imposed pursuant to 18 U.S.C.

§ 3013(a)(2)(A) were remitted, this court need not address Garcia’s

argument   that    the    evidence   was    insufficient     to   support    his

conviction under count six, aiding and abetting in the harboring

and concealing of Lopez-Cortez.        Id.

     Garcia argues that the district court committed reversible

error in admitting testimony over objection that a caller who

identified himself as “Chuy,” Garcia’s nickname, asked Lopez-

Cortez’s aunt for money to obtain her niece’s release.               He argues

that the district court erroneously admitted the caller’s statement

as   a   coconspirator’s      statement      pursuant   to    FED.   R.     EVID.

801(d)(2)(E) because the Government failed show who the caller was

and that he was a coconspirator.
                                    No. 04-20037
                                         -4-

     Statements made by a coconspirator of a party during the

course of and in furtherance of the conspiracy are not hearsay.

FED. R. EVID. 801(d)(2)(E).          It can be inferred that the telephone

call was made by someone involved in the smuggling conspiracy in

furtherance      of    the   goal   to    obtain     payment      for   providing   the

service.      However, the Government did not provide any direct

evidence that the caller was Garcia or any other specific person

involved in the conspiracy.              Thus, the district court abused its

discretion in admitting the testimony.                      See United States v.

McConnell, 988 F.2d 530, 533-34 (5th Cir. 1993).                          However, the

error was harmless because there was overwhelming evidence of

Garcia’s guilt and, thus, the jury decision was not substantially

affected    by    the    admission       of    the   evidence     of    the   telephone

conversation.         See United States v. Williams, 957 F.2d 1238, 1243

(5th Cir. 1992).

     The district court did not abuse its discretion in admitting

the testimony of Lopez-Cortez’s aunt that Lopez-Cortez was from El

Salvador    and   was     not   a   United      States      citizen     because   one’s

reputation among one’s family concerning personal or family history

is an exception to the hearsay rule.                 FED. R. EVID. 803(19); United

States v.     Jean-Baptiste,        166       F.3d   102,   110    (5th   Cir.    1999).

Further, there was other credible evidence presented that Lopez-

Cortez was an undocumented alien and, thus, any error in the

admission was harmless.
                              No. 04-20037
                                   -5-

       Garcia argues that the district court committed reversible

error in dismissing two alternate jurors at random in the absence

of and without notice to the defendants.             He argues that FED. R.

CRIM. P. 24 requires the court to replace jurors with alternate

jurors in the same sequence in which the alternates were selected.

He contends that counsel exercised his peremptory challenges and

made   his   closing   argument   based   on   the    assumption   that   the

individuals toward the end of the venire were not likely to serve

on the jury.     Garcia further argues that the dismissal of the

jurors in the absence of the parties violated his right under FED.

R. CRIM. P. 43 to be present at every trial stage, including jury

impanelment. Acosta adopts by reference this argument as presented

by Garcia pursuant to FED. R. APP. P. 28(i).

       FED. R. CRIM. P. 24(c)(2)(B) provides that “Alternate jurors

replace jurors in the same sequence in which the alternates were

selected.”    Although this court has not addressed this specific

issue, other circuits have determined that the random selection of

alternate jurors is a violation of Rule 24 but that a harmless

error analysis should be conducted if a violation occurs.                 See

United States v. Sogomonian, 247 F.3d 348, 352 (2d Cir. 2001);

United States v. Delgado, 350 F.3d 520, 523 (6th Cir. 2003); United

States v. Brewer, 199 F.3d 1283, 1286 (11th Cir. 2000).             FED. R.

CRIM. P. 43 guarantees a defendant the right to be present during

all stages of the trial, including jury impanelment.            However, if

a violation of Rule 43 occurs because the defendant and counsel are
                                    No. 04-20037
                                         -6-

not present and have no opportunity to object, the defendant must

show that he suffered actual prejudice in order to obtain a

reversal.     See United States v. Bieganowski, 313 F.3d 264, 293-94

(5th Cir. 2002), cert. denied, 538 U.S. 1014 (2003).

     Even if violations of FED. R. CRIM. P. 24(c)(2)(B) and FED. R.

CRIM. P. 43 occurred, Garcia and Acosta have failed to show that

they suffered any actual prejudice as a result of the errors.

Garcia and Acosta were afforded the opportunity to meaningfully

exercise their peremptory strikes and have not shown what different

action their counsel would have taken if they had been aware that

the alternate jurors would be randomly selected.                              The random

selection    of    the     alternate      jurors   is   not    reversible       error.



     Garcia       argues    that    the     district    court    plainly       erred   in

prohibiting his use of any recreational drugs, alcohol, or tobacco

products    as     a    condition      of    supervised       release    because       the

conditions have no relationship to his smuggling offense and there

was no indication that he had abused drugs, alcohol, or tobacco.

Acosta adopts this argument pursuant to FED. R. APP. P. 28(i).

     The    special        conditions       of   supervised      release       were    not

reasonably related to the alien smuggling offenses.                       The general

conditions    of       supervised    release       contained     in     the    judgments

prohibit the excessive use of alcohol and the possession, use, or

distribution of unprescribed controlled substances.                      The district

court plainly erred in adding the special conditions precluding any
                                    No. 04-20037
                                         -7-

use of alcohol and tobacco by Garcia and Acosta.               See United States

v.   Ferguson,    369    F.3d      847,   852-54   (5th   Cir.     2004).    Those

conditions of supervised release are vacated and the case remanded

for resentencing with respect to those conditions of supervised

release.

      Acosta    argues      that    the   district   court     plainly    erred    in

sentencing him over the statutory maximum in violation of United

States v. Blakely, 124 S. Ct. 2531 (2004).                He contends that his

offense level was increased by six levels above the statutory

maximum based on information in the presentence report that he had

transported twenty-seven illegal aliens when he had been charged

with smuggling only five aliens into the United States.

      Because Acosta did not raise this issue in the district court,

this court reviews the argument for plain error.               See United States

v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005), petition for cert.

filed, No. 04-9517 (U.S. Mar. 31, 2005).

In United States v. Booker, 125 S. Ct. 738, 756 (2005), the Supreme

Court held that “[a]ny fact (other than a prior conviction) which

is necessary to support a sentence exceeding the maximum authorized

by the facts established by a plea of guilty or a jury verdict must

be   admitted    by   the    defendant     or   proved    to   a   jury   beyond    a

reasonable doubt.”       Booker applies to this direct appeal.              125 S.

Ct at 769.

     In Mares, this court applied the plain error standard to a

Booker claim and held that under the third prong of the test, an
                           No. 04-20037
                                -8-

error that affects substantial rights, “the proponent of error must

demonstrate a probability sufficient to undermine confidence in the

outcome.”   402 F.3d at 521 (internal quotation marks and citation

omitted). Acosta does not argue that the district court would have

imposed a lesser sentence if it had known that the guidelines were

advisory.   Although it did impose a sentence at the bottom of the

guideline range, the district court did not give any indication

that it would have imposed a lesser sentence if it had known that

the guidelines were not mandatory.   Acosta has not shown that the

district court would have imposed a different sentence if it had

known that the guideline were advisory, and, thus, has failed to

show that the sentence imposed was plain error.   Id.

     CONVICTIONS AFFIRMED; SENTENCES VACATED IN PART; CASE REMANDED

FOR RESENTENCING.
