          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                   United States Court of Appeals
                                                            Fifth Circuit
                               No. 06-40529
                             Summary Calendar
                                                         F I L E D
                                                     September 28, 2007

UNITED STATES OF AMERICA                             Charles R. Fulbruge III
                                                             Clerk

                                          Plaintiff-Appellee

v.

RAYMUNDO DE LA CRUZ

                                          Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas
                         USDC No. 5:03-CR-1593-6


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      At the conclusion of his jury trial, Defendant-Appellant Raymundo De La
Cruz was convicted of one count of conspiring to possess more than 1000
kilograms of marijuana with intent to distribute and one count of possessing
more than 100 kilograms of marijuana with intent to distribute. He was
sentenced to serve 174 months in prison. De La Cruz appeals his conviction,
asserting it is invalid because evidence regarding cocaine was admitted at his
trial. As the evidence of De La Cruz’s guilt was overwhelming, any error that

      *
      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should not be published and is not precedent except under the limited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. 06-40529

occurred in connection with the admission of the disputed evidence was
harmless. See United States v. Collins, 40 F.3d 95, 99 n.11 (5th Cir. 1994); see
also United States v. Smith, 354 F.3d 390, 396 (5th Cir. 2003). De La Cruz also
claims that his indictment was constructively amended. This contention is
unavailing, because the record does not show that the jury was “permitted to
convict on an alternative basis permitted by the statute but not charged in the
indictment.” See United States v. Daniels, 252 F.3d 411, 413 (5th Cir. 2001).
The judgment of the district court is
AFFIRMED.




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