                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                December 7, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-10802
                           Summary Calendar



UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.

JOHNNY MOJICA,

          Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 3:98-CR-353-3-P
                      --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Johnny Mojica appeals his conviction and sentence imposed

following his jury trial conviction for possession with intent to

distribute five kilograms or more of cocaine. Mojica was sentenced

to a term of imprisonment of 160 months to be followed by a five-

year term of supervised release.

     Mojica argues that the district court committed reversible

error in denying his motion in limine and in admitting testimony

interpreting the meaning of a drug code word.    He argues that 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this opinion should not be published and is not precedent except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. 04-10802
                                 -2-

probative value of that evidence was outweighed by its prejudicial

effect.

     Experienced    narcotics    agents     may    testify   about   the

significance of certain conduct in the drug distribution business,

which includes providing an interpretation of drug jargon or code

words.    United States v. Washington, 44 F.3d 1271, 1283 (5th Cir.

1995); see United States v. Griffith, 118 F.3d 318, 321 (5th Cir.

1997).    However, the testimony of the witness must be based upon

sufficient facts and data.       FED. R. EVID. 702.          The agents’

testimony that the word “tamales” meant drugs as opposed to money

was not based on a prior use of that term.        The brief reference to

the term by Tijerina did not provide any guidance as to its meaning

within the context of the sentence.       Because there appeared to be

little factual support for the agents’ testimony regarding the

meaning of “tamales, it may have been an abuse of discretion to

admit the agents’ testimony.     See United States v. Navarro, 169

F.3d 228, 232 (5th Cir. 1999).

     Even if this court finds an abuse of discretion in the

admission of evidence, it reviews the error under the harmless-

error doctrine.    United States v. Skipper, 74 F.3d 608, 612 (5th

Cir. 1996).   When applying the harmless-error standard, this court

views the error in the context of the trial as a whole.           United

States v. Wells, 262 F.3d 455, 463 (5th Cir. 2001).            Relief is

warranted “only if the [inadmissible] evidence had a ‘substantial

impact’ on the verdict.”    Id. (internal quotation marks omitted).
                                No. 04-10802
                                     -3-

The admission of the testimony did not have substantial impact on

the jury’s verdict.       Id.   There was evidence independent of the

agents’ interpretation of the meaning of “tamales” to support

Mojica’s conviction for possession with intent to distribute more

than five kilograms of cocaine. Hebert’s testimony that Mojica was

delivering drugs rather than purchasing two kilograms of cocaine

was corroborated by the fact that eight kilograms of cocaine were

found in the truck.       The evidence showed that a drug dealer would

not take the unnecessary risk of exposing additional drugs to theft

or   seizure   by   law   enforcement.   Further,   Mojica’s   testimony

regarding the circumstances surrounding the drug transaction was

not credible, which explains the jury’s apparent rejection of

Mojica’s testimony concerning his role in the transaction.          The

admission of the agents’ interpretation of the word “tamales” did

not have a substantial impact on the verdict and, thus, any error

in the admission of the testimony was harmless.      Wells, 262 F.3d at

463.

       Mojica argues that the district court erred in raising his

offense level for obstruction of justice in light of United States

v. Booker, 125 S. Ct. 738 (2005).          By making an objection at

sentencing under Blakely v. Washington, 542 U.S. 296 (2004), Mojica

preserved a Sixth Amendment claim under Booker.      See United States

v. Akpan, 407 F.3d 360, 376 (5th Cir. 2005).

       Because the jury was not specifically instructed to determine

beyond a reasonable doubt whether Mojica committed perjury at trial
                            No. 04-10802
                                 -4-

and thus obstructed justice, the district court’s imposition of

this enhancement under the mandatory guidelines system was a Sixth

Amendment violation.   See United States v. Holmes, 406 F.3d 337,

364-65 (5th Cir. 2005).   Remarks made by the district court during

sentencing indicate that the district court felt compelled to

sentence Mojica within the guidelines sentencing range.    Because

the Government has pointed to no evidence in the record to show

that the district court would have imposed the same sentence if it

had acted under an advisory system, it has not shown that the error

was harmless.   See Akpan, 407 F.3d at 377.

     Mojica’s conviction is AFFIRMED. His sentence is VACATED, and

the matter is REMANDED for resentencing.

     AFFIRMED IN PART; SENTENCE VACATED AND CASE REMANDED FOR
RESENTENCING
