United States v. Lerma , 128 F. App'x 381 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 14, 2005
Charles R. Fulbruge III
Clerk
No. 04-40598
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOEL LERMA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-128-RC-ESH-2
Before REAVLEY, JONES, and GARZA, Circuit Judges.
PER CURIAM:*
Noel Lerma appeals from his convictions of possession
with intent to distribute heroin, conspiracy to possess with intent
to distribute heroin, and providing a prisoner with contraband. He
contends that the district court erred by admitting evidence of his
gang affiliation, that the district court erred by admitting
evidence of a prior conviction and a prior drug sale inside prison,
that the district court erred by admitting into evidence audiotape
recordings as the non-hearsay statements of a coconspirator, and
*
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opinion should not be published and is not precedent except under the limited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.
that the evidence was insufficient to support his convictions.
Finding no reversible error, we affirm.
This court reviews the district court’s admission of
testimony for an abuse of discretion. United States v. Clements,
73 F.3d 1330, 1334 (5th Cir. 1996). The gang-affiliation evidence
in Lerma’s case demonstrated that he and Joe Castro were affiliated
with each other and that gang members faced punishment for keeping
secrets from the gang or causing trouble for the gang. The
evidence was intrinsic to the charges against Lerma. See United
States v. Stovall, 825 F.2d 817, 825 (5th Cir.), amended, 833 F.2d
526 (1987). Its admission was not erroneous.
Lerma’s particular conditional stipulation to intent did
not preclude the Government from introducing prior bad-act evidence
under the circumstances of this case. United States v. Palmer, 37
F.3d 1080, 1083 (5th Cir. 1994). Lerma’s prior drug conviction was
admissible as probative of his intent. See United States v.
Taylor, 210 F.3d 311, 318 (5th Cir. 2000). The testimony of
another prisoner regarding a previous drug purchase was relevant to
showing that Lerma intended to distribute any heroin he helped to
traffic into prison. The admission of that testimony was not an
abuse of discretion. See Clements, 73 F.3d at 1334.
The testimony at Lerma’s trial, combined with the
audiotapes, indicated that Lerma and Joe Castro were involved in a
conspiracy, that the statements on the audiotapes were made in
furtherance of the conspiracy, and that the statements were made
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during the course of the conspiracy. The admission of the
audiotape statements was not an abuse of discretion. See Clements,
73 F.3d at 1334; United States v. Torres, 685 F.2d 921, 925 (5th
Cir. 1982).
Finally, the jury could have inferred beyond a reasonable
doubt from the evidence that Lerma and his fellow prisoner Billy
Roberson agreed to bring heroin into prison via Lynda Kirkpatrick;
that Lerma delegated to Joe Castro the details of providing
Kirkpatrick with the heroin; that Lerma intended to distribute any
heroin that he received; that Kirkpatrick brought heroin received
from Castro’s contacts into the prison; that Roberson gave Lerma
the heroin; and that Lerma distributed or participated in dis-
tributing it to other prisoners. The evidence was sufficient to
support Lerma’s substantive convictions based upon coconspirators’
testimony, see United States v. Velgar-Vivero, 8 F.3d 236, 241 (5th
Cir. 1993), United States v. Ayala, 887 F.2d 62, 67 (5th Cir.
1989); or upon the Pinkerton doctrine, see Pinkerton v. United
States, 328 U.S. 640, 66 S. Ct. 1180 (1946); or as an aider and
abetter.
In a Federal Rules of Appellate Procedure Rule 28(j)
letter, counsel for Lerma advised the court of the Booker
sentencing decision. The subject of sentencing was not mentioned
in oral argument, however, and Lerma briefed no substantive
complaints about his sentence before or after Booker. Under the
circumstances, he has not borne the burden of establishing plain
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error in the sentence. See U.S. v. Mares, __ F.3d __, 2005 WL
503715 (5th Cir. Mar. 04, 2005).
For these reasons, the judgment and sentence are
AFFIRMED.
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