                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT               September 21, 2004

                                                          Charles R. Fulbruge III
                             No. 03-40859                         Clerk
                           Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOSE ANGEL VASQUEZ; FRANCISCO BOTELLO,

                                     Defendants-Appellees.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                       USDC No. L-01-CR-1174-16
                         --------------------

Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose Angel Vasquez and Francisco Botello were convicted by a

jury of conspiring to possess with intent to distribute in excess

of 1000 kilograms of marijuana and of possessing with intent to

distribute less than 50 kilograms of marijuana.    Vasquez appeals

his convictions and his sentence, while Botello appeals only his

sentences.

Vasquez

     Vasquez first argues that the evidence was insufficient to

sustain his convictions.    He contends that the testimony of the


     *
       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this opinion should not be published and is not precedent except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. 03-40859
                                -2-

Government’s confidential witness was incredible and

insubstantial and that there was no credible evidence to show

that he committed the offenses for which he was indicted.    “As

long as it is not factually insubstantial or incredible, the

uncorroborated testimony of a co-conspirator, even one who has

chosen to cooperate with the government in exchange for

non-prosecution or leniency, may be constitutionally sufficient

evidence to convict.”   United States v. Westbrook, 119 F.3d 1176,

1190 (5th Cir. 1997).   We have reviewed the record, and we cannot

agree that the testimony of the confidential witness was

insubstantial or incredible.   Moreover, a review of the

sufficiency of the evidence does not include review of the weight

of the evidence or of witness credibility.     See United States v.

Garcia, 995 F.2d 556, 561 (5th Cir. 1993).   The evidence was

sufficient to support Vasquez’s convictions.

     Vasquez also challenges the district court’s evidentiary

rulings.   He argues that the district court erred in admitting

the hearsay statements of co-conspirators under FED. R. EVID.

801(d)(2)(e).   The district court did not abuse its discretion in

admitting the challenged evidence.   See United States v. Cornett,

195 F.3d 776, 782 (5th Cir. 1999).

     Vasquez also challenges the admission of mugshots taken

following his arrest.   The district court did not abuse its
                            No. 03-40859
                                 -3-
discretion in admitting the mugshots.      See United States v.

Carrillo, 20 F.3d 617, 620 (5th Cir. 1994); United States v.

Torres-Flores, 827 F.2d 1031, 1039 (5th Cir. 1987).

     Vasquez also contends that the district court erred in

refusing to admit, pursuant to FED. R. EVID. 804(b)(3), an out-of-

court exculpatory statement made by a co-conspirator.     The

district court did not abuse its discretion in refusing to admit

the statement.   See United States v. Vega, 221 F.3d 789, 803 (5th

Cir. 2000).   Because Vasquez has not shown error on the part of

the district court with respect to his convictions, the

convictions are AFFIRMED.

     Finally, Vasquez argues that his 63-month sentence for

possessing with intent to distribute less than 50 kilograms of

marijuana should be corrected because it exceeds the 60-month

statutory maximum under 21 U.S.C. § 841(b)(1)(D).     The Government

concedes the error.   We review for plain error because Vasquez

did not object in the district court.      See United States v.

Villarreal, 253 F.3d 831, 837 (5th Cir. 2001).     “[A] sentence

which exceeds the statutory maximum is an illegal sentence and

therefore constitutes plain error.”     United States v. Sias, 227

F.3d 244, 246 (5th Cir. 2000).   Because the error seriously

affects the fairness and integrity of judicial proceedings, we

will exercise our discretion to correct it.      See United States v.

Aderholt, 87 F.3d 740, 744 (5th Cir. 1996).     Accordingly, we

VACATE Vasquez’s sentence for possession with intent to
                            No. 03-40859
                                 -4-
distribute less than 50 kilograms of marijuana and remand for

resentencing.

Botello

     Botello challenges his sentences on two grounds.   Botello

first argues that his offense level should have been reduced by

two levels for acceptance of responsibility under U.S.S.G.

§ 3E1.1(a) because he admitted responsibility for the 90 pounds

of marijuana found in his vehicle.   We accord great deference to

the district court’s denial of acceptance of responsibility.       See

United States v. Jefferson, 258 F.3d 405, 412 (5th Cir. 2001).

Because Botello proceeded to trial and disputed his role in the

offense, we decline to disturb the district court’s determination

that Botello is not entitled to a reduction for acceptance of

responsibility.    See United States v. Dean, 59 F.3d 1479, 1496

(5th Cir. 1995).

     Botello also argues that the district court erred in holding

him responsible for 540 pounds of marijuana.   The district

court’s determination that Botello was responsible for 540 pounds

of marijuana was plausible in light of the record as a whole and

thus was not clearly erroneous.    See United States v. Alford,

142 F.3d 825, 831 (5th Cir. 1998).   Botello’s sentences are

AFFIRMED.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

RESENTENCING AS TO VASQUEZ ONLY.
