                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                            F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                          December 22, 2004

                                                                        Charles R. Fulbruge III
                                     No. 03-41527                               Clerk
                                   Summary Calendar


UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

JULIETTA LEZA,

                                                  Defendant-Appellant.

                          --------------------
              Appeal from the United States District Court
                   for the Southern District of Texas
                             (2:03-CR-52-3)
                          --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

      Defendant-Appellant Julietta Leza appeals her conviction for

conspiracy to possess more than five kilograms of cocaine with the

intent to distribute.          She asserts that three statements admitted

at trial did not fall under the co-conspirator exception to hearsay

set   forth    in    FED.    R.    EVID.   801(d)(2)(E),     because     there     was

insufficient     evidence         to   establish    Leza’s   participation       in    a

conspiracy     or    to     establish      that    the   comments   were    made      in

furtherance of the conspiracy.                    The statements and the other

testimony at trial establish by a preponderance of the evidence


      *
       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this opinion should not be published and is not precedent except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.
that Leza participated in a conspiracy.        See Bourjaily v. United

States, 483 U.S. 171, 181 (1987); Burton v. United States, 237 F.3d

490, 503 (5th Cir. 2000).

     Leza did not object to the testimony of Rodney Mirabal with

respect to a statement made to him by Felipe Alvarez (Felipe).            We

therefore review the introduction of the evidence for plain error

only.   United States v. Cantu, 167 F.3d 198, 204 (5th Cir. 1999).

Leza has   not   established   plain   error   in   the    introduction   of

Mirabal’s statement.

     Leza properly objected to the testimony of Diana Alvarez

regarding statements made to her by Felipe.         Even if it is assumed

that the statements were not made in furtherance of the conspiracy,

the introduction of the statements was harmless error.          See United

States v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996).

     Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), and for

the first time on appeal, Leza asserts that the district court

erred in calculating the drug quantity for the base offense level

and in denying her a minor role reduction.                This argument is

foreclosed by our decision in United States v. Pineiro, 377 F.3d

464, 473 (5th Cir.), petition for cert. filed (U.S. July 14, 2004).

Consequently, the judgment of the district court is AFFIRMED.




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