                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 05-4666



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

             versus


HILARIO G. HERRERA, a/k/a Hilario
Gutierrez-Herrera, a/k/a Hilario
G. Herrera,

                                                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-04-493)


Submitted:    June 21, 2006                  Decided:   August 23, 2006


Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John O. Iweanoge, Jr., THE IWEANOGES’ FIRM, P.C., Washington, D.C.,
for Appellant.      Paul J. McNulty, United States Attorney,
Patricia T. Giles, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           A jury convicted Hilario G. Herrera of conspiring to

transport illegal aliens (Count 1) and transporting illegal aliens

(Count   2),   in    violation    of    8   U.S.C.A.   §   1324(a)(1)(A)(ii),

(a)(1)(A)(v)(I) (West 2005 & Supp. 2006).                  The district court

sentenced Herrera on June 17, 2005, to a twenty-four-month term of

imprisonment.       On appeal, Herrera challenges his convictions and

sentence, asserting that the evidence was insufficient to convict

him, that the district court erred by refusing to allow him to

impeach his own witness and to give requested jury instructions,

and that his sentence violates the Sixth Amendment.              We affirm.

           Herrera first asserts that the evidence was insufficient

to convict him because there was no evidence of an agreement and

because he did not know the passengers were illegal aliens.             Thus,

he contends that the district court erred by denying his motion for

judgment of acquittal under Fed. R. Crim. P. 29.

           This court reviews the district court’s decision to deny

a Rule 29 motion de novo.        United States v. Uzenski, 434 F.3d 690,

700 (4th Cir. 2006).       Where, as here, the motion was based on a

claim of insufficient evidence, “[t]he verdict of a jury must be

sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.”                Glasser v. United

States, 315 U.S. 60, 80 (1942).                We have reviewed the trial




                                       - 2 -
transcript and are convinced that the evidence was sufficient to

convict Herrera on both counts.

            Next, Herrera asserts that the district court erred by

failing to give jury instructions on mistake of fact and multiple

conspiracies.     Our review of the joint appendix leads us to

conclude that the district court did not abuse its discretion by

refusing to give the requested instructions.      See United States v.

Ebersole, 411 F.3d 517, 526 (4th Cir. 2005) (stating standard of

review), cert. denied, 126 S. Ct. 1142 (2006).

            Herrera also asserts that the district court erred by

refusing to allow him to impeach a defense witness with a prior

inconsistent statement.     Although the credibility of a witness may

be attacked by the party calling that witness, see Fed. R. Evid.

607, our review of the trial testimony convinces us that the

probative value of the impeachment testimony was substantially

outweighed by its prejudicial effect.      See United States v. Ince,

21 F.3d 576, 579-80 (4th Cir. 1994).     Thus, the district court did

not abuse its discretion in excluding the testimony.         See United

States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (stating

standard of review).

            Finally, citing United States v. Booker, 543 U.S. 220

(2005), Herrera contends that his sentence violates the Sixth

Amendment   because   the   district   court   sentenced   him   under   a

mandatory sentencing guidelines scheme and applied enhancements for


                                 - 3 -
the number of aliens involved in the offense and for obstruction of

justice that were not based on facts found by the jury.      However,

Herrera was sentenced after the Supreme Court decided Booker.

Because Herrera provided no evidence that the district court failed

to follow Booker, we reject this claim.

            Accordingly,   we   affirm   Herrera’s   convictions   and

sentence.    We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                             AFFIRMED




                                 - 4 -
