United States v. Cunningham , 117 F. App'x 373 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 4, 2005
Charles R. Fulbruge III
Clerk
No. 04-40016
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARD CUNNINGHAM,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-844-ALL
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Following a jury trial, Bernard Cunningham was convicted
of one charge of possession of more than one hundred kilograms of
marijuana with intent to distribute. The district court sentenced
him to serve eighty-four months in prison and a five-year term of
supervised release.
Cunningham argues that plain error resulted from the
admission of testimony concerning an offer to transport drugs. He
argues that this testimony amounts to hearsay and does not fall
*
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opinion should not be published and is not precedent except under the limited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.
under the exception to the hearsay rule for coconspirator
statements embodied in FED. R. EVID. 801(d)(2). The disputed
testimony does not amount to hearsay, as it concerns a question or
inquiry. See United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir.
1990). Cunningham has not shown plain error in connection with the
admission of the disputed testimony.
Cunningham also contends that the statute of conviction,
21 U.S.C. § 841, is unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). This argument is, as he concedes,
unavailing. See United States v. Slaughter, 238 F.3d 580 (5th Cir.
2000).
Cunningham has not shown reversible error in connection
with his conviction and sentence. Accordingly, the judgment of the
district court is AFFIRMED.
2