                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 26, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-40783
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,
versus

SERAFIN ARECHE, also known as Moreno

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                     USDC No. 6:03-CR-83-LED-3
                        --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Serafin Areche, “aka ‘Moreno’” was charged in a two-count

superseding indictment with conspiracy to possess with the intent

to distribute more than 50 kilograms of cocaine, and with

possession with the intent to distribute approximately 21

kilograms of cocaine.   After a trial, the jury returned a guilty

verdict.

     The presentence report (PSR) did not recommend an adjustment

for Areche’s role in the offense.   The probation officer noted

that although there were “three other participants in this

     *
       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this opinion should not be published and is not precedent except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. 04-40783
                                -2-

offense, the defendant’s role is not considered either

aggravating nor mitigating.”   The Government objected, arguing

that Areche should receive a four-level increase pursuant to

U.S.S.G. § 3B1.1(a).   The district court sustained the

Government’s objection.   The court found that “there were at

least five or more participants involved in the criminal activity

and that the Defendant directed at least one of them, Hugo

Quevedo.”   The court further found that Areche’s “involvement as

a leader of a criminal activity was otherwise extensive.”        In

addition to assessing the four-level increase under U.S.S.G.

§ 3B1.1, the court imposed a two-million dollar fine.     This

appeal followed.

     Areche first argues that DEA Agent Robert Zafra should not

have been allowed to testify that it was Areche’s voice that

could be heard on the recorded conversations recounted by Zafra.

Areche argues that the identification testimony violated the

attorney-client privilege because it was admittedly based on

Zafra’s listening to conversations between Areche and his counsel

at trial.   Areche acknowledges that because he did not object to

Zafra’s testimony on the basis of the attorney-client privilege,

review of his argument is for plain error.   To show reversible

plain error, Areche must show (1) an error, (2) that is clear and

obvious, and (3) that affects his substantial rights.     See United

States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002).
                             No. 04-40783
                                  -3-

     Zafra’s testimony was not based on the content of any

confidential communication between Areche and his attorney, but

merely on the sound of Areche’s voice during normal conversation

in the courtroom.     Accordingly, the district court’s failure to

disallow Zafra’s testimony based on the attorney-client privilege

was not plain error.     See United States v. Robinson, 121 F.3d

971, 975 (5th Cir. 1997).

     Areche also argues that Zafra’s identification testimony was

insufficient under FED. R. EVID. 901.    Because Areche made a

timely objection to the district court’s evidentiary ruling in

this respect, review of the district court’s ruling is for an

abuse of discretion.     See United States v. Lampton, 158 F.3d 251,

259 (5th Cir. 1998).    Zafra’s testimony satisfied the

requirements of FED. R. EVID. 901(b)(5).    Id.   Areche’s contention

that Zafra’s identification of his voice was equivocal goes only

to the weight of the testimony, not its admissibility.      Id.

Accordingly, the district court did not abuse its discretion by

allowing the identification testimony.

     Areche next argues that the district court erred by

increasing his offense level pursuant to U.S.S.G. § 3B1.1(a).

He argues that the his role in the conspiracy was limited to

being “the source of the cocaine only” and that a buyer-seller

relationship is insufficient to qualify for the enhancement.       We

review a district court’s legal interpretation of the Sentencing

Guidelines de novo.    United States v. Lowder, 148 F.3d 548, 552
                            No. 04-40783
                                 -4-

(5th Cir. 1998).**   The district court’s findings of fact are

reviewed for clear error.   Id.

     The Sentencing Guidelines provide for the increase in a

defendant’s offense level by four levels “if the defendant was an

organizer or leader of a criminal activity that involved five or

more participants or was otherwise extensive.”   U.S.S.G.

§ 3B1.1(a).   “To qualify for an adjustment under this section,

the defendant must have been the [organizer or leader] of one or

more other participants.”   Id., comment.(n.2); United States v.

Cooper, 274 F.3d 230, 247 (5th Cir. 2001).   In distinguishing a

leadership or organizational role from one of mere management or

supervision, factors the court should consider include:     (1) the

exercise of decision-making authority; (2) the nature of

participation in the commission of the offense; (3) the

recruitment of accomplices; (4) the claimed right to a larger

share of the fruits of the crime; (5) the degree of participation

in planning or organizing the offense; (6) the nature and scope

of the illegal activity; and (7) the degree of control and

authority exercised over others.   Id., comment.(n.4); see United

States v. Glinsey, 209 F.3d 386, 396 (5th Cir. 2000).

     At the sentencing hearing, the Government asserted that “the

telephone conversations that Your Honor heard which were admitted


     **
       United States v. Booker, 125 S. Ct. 738 (2005), did not
affect the application of this standard in cases, such as
Areche’s, where the district court has imposed a guidelines
sentence. United States v. Villegas, __ F.3d __, No. 03-21220,
2005 WL 627963 at *2-*5 (5th Cir. Mar. 17, 2005).
                             No. 04-40783
                                  -5-

in evidence at [Areche’s] trial made it clear that Quevedo took

directions from this Defendant.”    The Government’s reliance on

the introduction of the taped conversations is flawed, however,

because the tapes were never introduced into evidence.    Moreover,

although Areche was a supplier to Quevedo, Agent Zafra

acknowledged that Quevedo had another supplier who could deliver

21 kilograms of cocaine.     Compare United States v. Pineiro, 377

F.3d 464, 474 (5th Cir. 2004), vacated on other grounds, 125

S. Ct. 1003 (2005)(defendant was an “exclusive supplier” for the

criminal activity).   Further, it was another conspirator, Craig

Hector Rivera, not Areche, who paid the participants, including

Areche.   Compare Pineiro, 377 F.3d at 474 (defendant directed and

paid several couriers).    In sum, we conclude that the record is

devoid of facts showing that Areche organized or led Quevedo.

Accordingly, Areche’s sentence is VACATED and the matter is

REMANDED for resentencing.     See United States v. Ronning, 47 F.3d

710, 713 (5th Cir. 1995).

     Areche also challenges the district court’s imposition of a

two-million dollar fine.    He argues that the court imposed the

fine because remained silent rather than cooperate with the

probation officer.    “It is undisputed that the guidelines place

the burden of proving an inability to pay a fine squarely on the

defendant.”   United States v. Fair, 979 F.2d 1037, 1041 (5th Cir.

1992); see U.S.S.G. § 5E1.2(a).    The district court’s statements

at sentencing, when read as a whole, indicate that the court’s
                           No. 04-40783
                                -6-

reason for imposing the fine was the burden set forth in U.S.S.G.

§ 5E1.2(a), not Areche’s failure to cooperate with the probation

office.   The Fifth Amendment thus was not implicated.

   Areche contends, for the first time on appeal, that his

sentence was imposed in violation of Blakely v. Washington, 125

S. Ct. 21 (2004).   Although Areche’s brief was written prior to

the Supreme Court’s decision in Booker, 125 S. Ct. 738, Areche

noted the pendency of Booker and he asserted that the Supreme

Court’s decision in Booker might validate his argument.     Because

we must vacate Areche’s sentence due to the misapplication of

U.S.S.G. § 3B1.1(a), we do not reach this argument.      See United

States v. Southerland,      F.3d    , No. 03-11319, 2005 WL 729469

at *7 (5th Cir. Mar. 31, 2005).

     VACATED AND REMANDED FOR RESENTENCING.
