                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 29, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 04-10099
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

MARCOS MENA-VALERINO; HARLES PORTES HERRERA,

                                      Defendants-Appellants.

                         --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                       USDC No. 4:03-CR-92-2-Y
                         --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Marcos Mena-Valerino (“Mena”) and Harles Portes Herrera

(“Portes”) appeal their convictions for possession and conspiracy

to possess with intent to distribute more than 1000 kilograms of

marijuana.     Mena and Portes argue that the Government failed to

prove that they conspired and possessed more than 1000 kilograms

of marijuana, as alleged in the indictment, because evidence at

trial showed that only 953 grams of marijuana had been tested.

They assert that they should not have been subjected to the 10-


     *
       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this opinion should not be published and is not precedent except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. 04-10099
                                -2-

year mandatory minimum sentence under 28 U.S.C. § 841(b)(1)(A),

but rather sentenced under 28 U.S.C. § 841(b)(1)(D), which

penalizes cases involving less than 50 kilograms of marijuana.

They contend that their sentences violate Apprendi v. New Jersey,

530 U.S. 466 (2000), because their sentences exceed the five-year

statutory maximum sentence set forth in 28 U.S.C. § 841(b)(1)(D).

     “[I]f the government seeks enhanced penalties based on the

amount of drugs under 21 U.S.C. § 841(b)(1)(A) or (B), the

quantity must be stated in the indictment and submitted to a jury

for a finding of proof beyond a reasonable doubt.”   See United

States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000); see also

Apprendi v. New Jersey, 530 U.S. at 490.   Here, the quantity of

marijuana was alleged in the indictment and submitted to the

jury.   Thus, there can be no Apprendi error.   See Doggett, 230

F.3d at 165.   Additionally, there was sufficient evidence

presented at trial to prove that the amount of marijuana involved

was more than 1000 kilograms.   See United States v. Fitzgerald,

89 F.3d 218, 223 n.5 (5th Cir. 1996) (“Random sampling is

generally accepted as a method of identifying the entire

substance whose quantity has been measured”).

     Mena and Portes also argue that the district court abused

its discretion in permitting a Government agent to testify to

their post-arrest statements, which were translated by a Spanish

interpreter.   Citing to United States v. Nazemian, 948 F.2d 522

(9th Cir. 1991), they contend that the interpreter did not act as
                            No. 04-10099
                                 -3-

a mere language conduit, but rather her translated statements

created an additional level of hearsay.

     The district court did not abuse its discretion in

determining that the interpreter was a mere “language conduit.”

See United States v. Cordero, 18 F.3d 1248, 1253 (5th Cir. 1994)

(quoting United States v. Lopez, 937 F.2d 716, 724 (2d Cir.

1991)); see also Nazemian, 948 F.2d at 527.     The record reflects

that Mena and Portes spoke and understood English.    The

reliability of the interpreter’s translated statements is

indicated by the failure of Mena and Portes to correct the

translation.    See Lopez, 937 F.2d at 724.   Because the

interpreter’s translated statements do not constitute hearsay,

see Cordero, 18 F.3d at 1253, the district court did not abuse

its discretion in allowing the Government agent to testify to the

translated statements at trial.    See Lopez, 937 F.2d at 724;

United States v. Mendoza-Medina, 346 F.3d 121, 127 (5th Cir.

2003), cert. denied, 124 S. Ct. 1161 (2004).

     Mena argues that the district court erred in its calculation

of drug quantity at sentencing.   Although Mena filed objections

to the presentence report, Mena has failed to provide this court

with a transcript of his sentencing hearing.    This court will not

consider an issue about which the record on appeal is

insufficient.   See FED. R. APP. P. 10(b); United States v.

Johnson, 87 F.3d 133, 136 n.1 (5th Cir. 1996).    Furthermore,

Mena’s argument pursuant to Blakely v. Washington, 124 S. Ct.
                          No. 04-10099
                               -4-

2531 (2004), is foreclosed by this court’s decision in United

States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004), pet. for

cert. filed (July 14, 2004) (No. 04-5263) (Blakely does not

extend to the federal Guidelines).

     Accordingly, Mena’s and Portes’s convictions and sentences

are AFFIRMED.
