* Pursuant to 5 TH C IR

. 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that this opinion should not be published and is not precedent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 5 TH C IR

.

R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

May 22, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-20014

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALLEN G. HOLLIMAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-00-CR-411-3

--------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM: *

Allen G. Holliman (“Holliman”) appeals his jury-trial

conviction and sentence for conspiracy to commi t bank fraud and

four counts of bank fraud and aiding and abetting bank fraud.

Holliman raises five issues on appeal. First, Holliman argues that

the district court abused its discretion by excluding the testimony

of an expert offered by Holliman’s co-defendant. Assuming arguendo

that the district judge abused his discretion in excluding theNo. 02-20014

-2-

expert’s testimony, we believe such an error was harmless, as “the

trier of fact would have found the defendant guilty beyond a

reasonable doubt with the additional evidence inserted.” U nited

States v. Lueben , 812 F.2d 179, 186 n.7 (5th Cir. 1987).

Second, Holliman asserts that the district court plainly erred

in allowing hearsay testimony of communic ation that was not “in

furtherance of” the c onspiracy. Although the hearsay testimony

consisted of statements that were not made in furtherance of the

conspiracy, the admission of the testimony was not plain error and

did not affect Holliman’s substantial rights, as similar statements

in furtherance of the conspiracy had been properly admitted. See

United States v. Reyes , 300 F.3d 555, 558 (5th Cir. 2002); United

States v. Cornett , 195 F.3d 776, 782 (5th Cir. 1999).

Third, Holliman argues that the district court abused its

discretion in refusing to grant a mistrial based upon the testimony

of an FBI agent that Holliman obstructed justice. Viewed in light

of the entire record, there is not a significant possibility that

the prejudicial testimony had a substantial impact upon the jury

verdict. S ee United States v. Layne

, 43 F.3d 127, 134 (5 th Cir.

1995).

Fourth, Holliman asserts that the district court erred in

finding that he obstructed justice and adjusting his offense level

pursuant to U.S.S.G. § 3C1.1. The district court correctly found

that Holliman’s conduct fell within conduct included under

Application Note 4(c) of § 3C1.1 and co nstituted obstruction ofNo. 02-20014

-3-

justice. S ee United States v. Martinez

, 263 F.3d 436, 441-42 & n.3

(5th Cir. 2001).

Fi nally, Holliman argues that the district court erred by

failing to instruct the jury that the amount of the loss was an

element of the offense that had to be found b y the jury beyond a

reasonable doubt. The district court properly overruled Holliman’s

objection, as only facts that increase the penalty for a crime

beyond the statutory maximum must be submitted to the jury and

proven beyond a reasonable doubt. A pprendi v. New Jersey

, 530 U.S.

466, 489 (2000); U nited States v. Wilson

, 249 F.3d 366, 380 (5t h

Cir. 2001).

AFFIRMED.