* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-11105

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ALEX ROMO RIOS

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:07-CR-22-1

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Alex Romo Rios appeals his conviction and sentence for conspiracy to

distribute and possess with intentto distribute five kilograms or more of cocaine,

distribution and possession with intent to distribute 50 grams or more of

methamphetamine, and possession with intent to distribute less than 50

kilograms of marijuana. Rios challenges his conviction on the

methamphetamine count on the basis that the district court admitted evidence

United States Court of Appeals

Fifth Circuit

F I L E D

October 27, 2008

Charles R. Fulbruge III

Clerk
No. 07-11105

2

in violation ofthe Confrontation Clause under Crawford v. Washington, 541 U.S.

36 (2004), and the hearsay rule, FED. R. EVID. 802. Specifically, he maintains

that the statements of an unavailable confidential informant on a recording of

conversations between the confidential informant and Rios during a

methamphetamine sale by Rios to the confidential informant, a transcript of that

recording, and testimony about the conversations and other conversations

between Rios and the confidential informant given by Drug Enforcement

Administration Agent Alan Westerman and Lubbock Police Officer Manuel

Reyna were improperly admitted. If the challenged evidence were excluded, Rios

asserts thatthere would be insufficient evidence to support his conviction on the

methamphetamine count.

The statements of the confidential informant on the recording were part

of an integrated and reciprocal conversation with Rios. Officer Reyna testified

that he was in the vicinity of Rios and the confidential informant, saw them

meet, and listened to the conversation while it was being recorded. This

testimony was sufficientindicia ofthe reliability ofthe recording and transcript.

See United States v. Cheramie, 51F.3d 538, 541 (5th Cir. 1995). Accordingly, the

statements of the confidential informant on the recording and transcript were

admitted to provide context to Rios’s statements, were not admitted to prove the

truth of the matters asserted therein, and did not violate the Confrontation

Clause or the hearsay rule. See id.; FED. R. EVID. 801(c). Rios’s attempts to

distinguish Cheramie are without merit as a cautionary instruction is not

necessary to apply the holding in Cheramie and Crawford did not overrule

Cheramie. See United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004) (holding

that limiting instruction cannot cure Confrontation Clause violation); United

States v. Dixon, 132 F.3d 192, 198 (5th Cir. 1997) (applying Cheramie without

presence of limiting instruction); Crawford, 541 U.S. at 68 (refusing to provide

a comprehensive definition of what statements are testimonial that could have

overruled the holding in Cheramie).
No. 07-11105

3

The properly admitted evidence against Rios included the recording ofthe

methamphetamine sale, the methamphetamine itself, testimony that the

substance was methamphetamine, and testimony that Rios’s fingerprint was on

the bag that contained the methamphetamine. Given the overwhelming nature

of the other evidence against Rios, any error in admitting the challenged

testimony of Agent Westerman and Officer Reyna was harmless. See United

States v. Insaulgarat, 378 F.3d 456, 464 (5th Cir. 2004).

Rios argues that the district court erred by applying a four-level

enhancement for his being a leader or organizer of a criminal activity involving

five or more participants. The district court, however, sentenced Rios to the

statutory minimum sentence of life imprisonment without release on the cocaine

and methamphetamine counts and the application of the enhancement did not

change Rios’s sentencing guidelines range on the marijuana count. The record

leaves no reasonable doubt that the district court would have imposed the same

sentence whether or not the four-level enhancement for Rios’s being a leader or

organizer had been applied. Accordingly, any possible error caused by the

application of the enhancement was harmless. See United States v. MejiaHuerta, 480 F.3d 713, 720 (5th Cir. 2007), cert. denied, 128 S. Ct. 2954 (2008).

The arguments raised by Rios are without merit. Accordingly, the district

court’s judgment is AFFIRMED, the Government’s motion for summary

affirmance is GRANTED, and the Government’s motion for an extension of time

is DENIED.