                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4523


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOSE JUAN ORGANES-ESPINO, a/k/a         Johnny   Organes,   a/k/a
Johnny Two Braids, a/k/a Paisa,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00263-WO-1)


Submitted:   March 20, 2012                  Decided:   April 2, 2012


Before SHEDD, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Sandra   J.   Hairston,   Assistant   United States  Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Jose     Juan       Organes-Espino              appeals      the   324-month

sentence imposed following his jury conviction of one count of

conspiracy to distribute cocaine hydrochloride, in violation of

21    U.S.C.    § 846      (2006),       and       one    count      of    possession      of

ammunition      by   an    illegal       alien,      in       violation     of   18    U.S.C.

§§ 922(g)(5),        924(a)(2)         (2006).           On    appeal,     Organes-Espino

argues that the district court erred in (1) admitting testimony

regarding a recorded phone call from a witness who was not a

party to the call, and (2) applying a three-level leadership

enhancement      pursuant         to    U.S.       Sentencing        Guidelines        Manual

(“USSG”) § 3B1.1(b) (2010).              We affirm.

              Organes-Espino first contends that the district court

erred in admitting the testimony regarding the recorded calls

because    it    was       impermissible           opinion       testimony.           Because

Organes-Espino       did    not    object      to    the      testimony     at   trial,    we

review this claim for plain error.                        See Fed. R. Evid. 103(d);

United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006).

              Assuming,     without       deciding,           that   the   district     court

erred in admitting the challenged evidence, we conclude that the

admission did not rise to the level of plain error, as it did

not affect Organes-Espino’s substantial rights.                             Not only did

the    jury     receive       transcripts           of        the    recordings,        which



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Organes-Espino            stipulated         were        accurate,       but       the    remaining

evidence of Organes-Espino’s guilt was overwhelming.

               We       also     perceive      no       plain       error    under       the     Sixth

Amendment’s         Confrontation            Clause.           The     Confrontation           Clause

“guarantees         a    defendant’s         right       to    confront          those    ‘who    bear

testimony’ against him,” and, therefore, a witnesses’ testimony

is “inadmissible unless the witness appears at trial or, the

witness is unavailable, the defendant had a prior opportunity

for cross-examination.”                  Melendez v. Massachusetts, 129 S. Ct.

2527, 2531 (2009) (quoting Crawford v. Washington, 541 U.S. 36,

51,    54   (2004)        (internal          quotation        marks     omitted).              When   a

co-conspirator’s statements are admissible under Federal Rule of

Evidence       801(d)(2)(E),             there          is     no     Confrontation            Clause

violation.              Bourjaily       v.   United          States,    483       U.S.     171,    182

(1987).        Because the recorded calls were made during and in

furtherance         of         the   drug      conspiracy,             see       Fed.     R.     Evid.

801(d)(2)(E), their admission did not violate the Confrontation

Clause.        To       the    extent    that    Organes-Espino              alleges       that   the

testimony regarding the calls was, itself, a Crawford violation,

we conclude that the testimony was not hearsay, and, therefore,

it was admissible under Crawford.

               Finally,         Organes-Espino            contends       that       the    district

court erred in applying a three-level leadership enhancement.

We    review    a       district     court’s            application         of    the     Sentencing

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Guidelines de novo and its factual findings for clear error.

United   States    v.    Mehta,    594    F.3d      277,     281     (4th   Cir.    2010).

Pursuant    to    USSG    § 3B1.1(b),         a     defendant        qualifies     for     a

three-level enhancement if he was “a manager or supervisor (but

not an organizer or leader) and the criminal activity involved

five or more participants or was otherwise extensive.”                                  USSG

§ 3B1.1(b).       To     qualify     as       a    manager      or    supervisor,        the

defendant need only have exercised control over one participant.

USSG § 3B1.1, cmt. n.2.           In determining a defendant’s leadership

role, a court should consider seven factors:

     the exercise of decision making authority, the nature
     of participation in the commission of the offense, the
     recruitment of accomplices, the claimed right to a
     larger share of the fruits of the crime, the degree of
     participation in planning or organizing the offense,
     the nature and scope of the illegal activity, and the
     degree of control and authority exercised over others.

USSG § 3B1.1, cmt. n.4; see also United States v. Sayles, 296

F.3d 219, 224 (4th Cir. 2002).

            Here, the district court did not err in assessing a

three-level enhancement.           The evidence clearly showed that the

criminal    activity      involved       at       least    five      people   and       that

Organes-Espino     exercised       control         over    at      least    one    of    the

participants, who delivered cocaine at his behest for a period

of years.

            Accordingly, we affirm the district court’s judgment.

We deny Organes-Espino’s motions to file a pro se supplemental

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brief.     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




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