FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 13, 2005

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 04-14961

 

D. C. Docket No. 03-20759 CR-MGC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILFREDO RODRIGUEZ,

JULIO RODRIGUEZ,

Defendants-Appellants.

 

Appeals from the United States District Court

for the Southern District of Florida

 

(December 13, 2005)

Before DUBINA and KRAVITCH, Circuit Judges, and STROM*, District Judge.

PER CURIAM:

___________________________

*Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting by

designation.
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Appellants, Wilfredo and Julio Rodriguez, appeal their convictions and

sentences for various drug related offenses.

Following the five-day trial, the jury returned a verdict of guilty against

Wilfredo on Counts 1-6 and against Julio on Counts 1-3. The court sentenced

Julio to life imprisonment on Count 1 and 240 months imprisonment on Counts 2

and 3, to be served concurrently, followed by concurrent ten-year terms of

supervised release and a $300 special assessment. The court sentenced Wilfredo

to life imprisonment as to Counts 1 through 4 and 6, to be served concurrently,

and to life imprisonment on Count 5, to be served consecutively to the other

counts, followed by concurrent five-year terms of supervised release and a $600

special assessment. Appellants timely appealed.

The issues presented for appellate review are (1) whether the district court

erred in admitting co-conspirator statements under Fed. R. Evid. 801(d)(2)(E); (2)

whether the district court abused its discretion by admitting evidence of

appellants’ prior convictions pursuant to Fed. R. Evid. 404(b); and (3) whether the

appellants’ sentences were in error in light of United States v. Booker, 543 U.S.

220, 125 S. Ct. 738 (2005).

Whether a statement was made during the course and in furtherance of a

conspiracy under Fed. R. Evid. 801(d)(2)(E) is a factual determination that will be
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disturbed only for clear error. United States v. Lampley, 68 F.3d 1296, 1300 (11th

Cir. 1995). A district court’s decision to admit evidence of a prior conviction

under Fed. R. Evid. 404(b) is reviewed by this court under an abuse of discretion

standard. United States v. Hogan, 986 F.2d 1364, 1373 (11th Cir. 1993). When,

as here, a defendant raises in the district court an objection to the constitutionality

of the guidelines, preserving a Booker claim, this court reviews the case de novo

but will reverse and remand only for harmful error. United States v. Paz, 405 F.3d

946, 948 (11th Cir. 2005). “‘To find harmless error, [this court] must determine

that the error did not affect the substantial rights of the parties.’” Id. (quoting

United States v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998)); see also Fed. R.

Crim. P. 52(a) (providing that “[a]ny error, defect, irregularity, or variance that

does not affect substantial rights must be disregarded”).

Although it is a close question whether the district court erred in admitting

the co-conspirators’ statements under Fed. R. Evid. 801(d)(2)(E) and in admitting

evidence of appellants’ prior convictions pursuant to Fed. R. Evid. 404(b), we

cannot say that the district court committed reversible error. Additionally, we see

no Booker error in appellants’ sentences.
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Accordingly, after reviewing the record, reading the parties’ briefs, and

having the benefit of oral argument, we affirm appellants’ convictions and

sentences.

AFFIRMED.