* 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that this opinion should not be published and is not precedent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.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

Nos. 97-30757 & 97-30758

Summary Calendar

________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO COLON,

also known as Jose Antonio Betancourt,

Defendant-Appellant.

________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO ARIAS,

Defendant-Appellant.

_________________________________________________________________

Appeals from the United States District Court

for the Western District of Louisiana

(96-CR-20028 & 96-CR-20028-004)

_________________________________________________________________

August 4, 1998

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*
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Ricardo Colon appeals his conviction for conspiracy to

distribute cocaine, possession with intent to distribute cocaine,

and interstate travel in aid of illegal activity. Sergio Arias,

who pleaded guilty to conspiracy to distribute cocaine, appeals

only his sentence. Both Appellants were involved in a conspiracy

to transport cocaine from Houston, Texas, to Memphis, Tennessee.

As their offenses arise out of the same course of conduct, our

court granted the Government’s motion to consolidate their appeals.

Colon contends that the district court erred by denying his

motion for mistrial, following an FBI agent’s improper,

nonresponsive testimony in which he attributed several murders to

members of the organization with whom Colon had conspired. After

the district court denied Colon’s motion for a mistrial, the

Government clarified that there were no murder charges against

Colon and instructed the agent to refrain from making any further

comments on the subject.

We review a district court’s refusal to grant a mistrial for

abuse of discretion. United States v. Layne, 43 F.3d 127, 134 (5th

Cir.), cert. denied, 514 U.S. 1077 (1995). “Where, as here, the

motion for a mistrial involves the presentation of prejudicial

testimony before the jury, a new trial is required only if there is

a significant possibility that the prejudicial evidence had a

substantial impact upon the jury verdict, viewed in light of the

entire record.” Id. (internal quotation marks and citation
- 3 -

omitted). Considering the Government’s curative statements in open

court immediately following the nonresponsive answer, and in the

light of the abundant evidence of Colon’s guilt, it is unlikely

that the improper testimony had a substantial impact on the jury’s

verdict. Accordingly, the district court did not abuse its

discretion by denying Colon’s motion for mistrial.

Guidelines’ § 5C1.2 requires the district court to sentence a

defendant according to applicable guidelines without regard to a

statutory minimum sentence, if the five criteria for its

application are satisfied. Arias contends that the district court

erred by finding that he had not met the fifth eligibility

requirement for application of § 5C1.2 (“not later than the time of

the sentencing hearing, the defendant has truthfully provided to

the Government all information and evidence the defendant has

concerning the offense or offenses that were part of the same

course of conduct or of a common scheme or plan”). Although Arias

also contends that the district court mistakenly believed that it

had no authority to apply § 5C1.2, and that it failed to present

any reasons for refusing to apply § 5C1.2, neither of those

contentions has merit. The record reflects that the district court

was aware of its authority to apply § 5C1.2 if Arias met all of the

eligibility requirements, and the court stated reasons for refusing

to apply it.
- 4 -

We review the district court’s refusal to apply § 5C1.2 for

clear error. United States v. Flanagan, 80 F.3d 143, 145 (5th Cir.

1996). The district court’s finding was based on Arias’ testimony

at Colon’s trial that Colon had not been involved in the

conspiracy. In the light of the jury verdict convicting Colon and

the great weight of evidence directly contradicting Arias’

testimony, the district court did not clearly err by finding that

Arias had not given truthful information to the Government

regarding his offense and was, therefore, ineligible for

application of § 5C1.2. See United States v. Edwards, 65 F.3d 430,

433 (5th Cir. 1995). The contention that § 5C1.2 could not be

applied because the district court did not impose an upward

adjustment for obstruction of justice, pursuant to U.S.S.G. §

3C1.1, also fails.

AFFIRMED