UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4774

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRICEIDA MITRE,

Defendant - Appellant.

No. 04-4964

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRICEIDA MITRE,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern

District of Virginia, at Alexandria. Claude M. Hilton, Chief

District Judge. (CR-03-327)

Submitted: May 11, 2005 Decided: June 1, 2005

Before WILKINSON, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed in part; vacated and remanded in part by unpublished per

curiam opinion.

John D. Brosnan, LAW OFFICE OF JOHN D. BROSNAN, Fairfax, Virginia,

for Appellant. Paul J. McNulty, United States Attorney, G. David

Hackney, Assistant United States Attorney, Alexandria, Virginia,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Briceida Mitre appeals her conviction and sentence for

conspiracy to possess with intent to distribute one kilogram or

more of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000),

and conspiracy to import one kilogram or more of heroin, in

violation of 21 U.S.C. §§ 952(a), 963 (2000). The district court

sentenced Mitre to 151 months in prison.

Mitre argues the district court erred when it allowed a

co-conspirator to testify about a conversation she had with him

while awaiting trial. We review the admission of alleged hearsay

evidence for an abuse of discretion. See United States v. Mohr,

318 F.3d 613, 618 (4th Cir. 2003). Hearsay is “a statement, other

than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted.” Fed. R. Evid. 801(c). If the statement is offered for

some purpose other than to prove the truth of the assertion

contained within the statement, it is not inadmissible hearsay.

United States v. Pratt, 239 F.3d 640, 643-44 (4th Cir. 2001).

Because we conclude the testimony was not admitted to prove the

truth of the matter asserted, we conclude it was not hearsay.

Mitre next argues the district court erred when it

permitted the Government to introduce testimony and documentary

evidence about events that occurred after she stopped participating

in the conspiracy. Because we conclude this evidence was relevant
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and not unduly prejudicial, we conclude the district court did not

abuse its discretion when it chose to admit it. See United

States v. Leftenant, 341 F.3d 338, 342 (4th Cir. 2003), cert.

denied, 124 S. Ct. 1183 (2004); United States v. Zandi, 769 F.2d

229, 237 (4th Cir. 1985) (noting that trial court “has broad

discretion in ruling on questions of relevancy and in balancing the

probative value of relevant evidence against any undue

prejudice.”).

Mitre also challenges the district court’s supplemental

jury instruction. Because Mitre did not object to the instruction

at trial, we review for plain error. See United States v. Carr,

303 F.3d 539, 543 (4th Cir. 2002) (“[A]n appellate court may

correct an error not brought to the attention of the trial court if

(1) there is an error (2) that is plain and (3) that affects

substantial rights. If all three of these conditions are met, an

appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”

(internal quotation marks and alteration omitted)). Although the

district court failed to inform the jury that Mitre could only be

held responsible for the drug quantities of the other conspirators

if they were reasonably foreseeable and in furtherance of the

conspiracy, we conclude the error did not affect Mitre’s

substantial rights. See United States v. Collins, 401 F.3d 212,
*Because Mitre objected in the district court to the mandatory

application of the Sentencing Guidelines, she need not establish

plain error on appeal to be entitled to resentencing. Just as we

noted in United States v. Hughes, 401 F.3d 540, 545 n.4 (4th Cir.

2005), “[w]e of course offer no criticism of the district judge,

who followed the law and procedure in effect at the time” of

Mitre’s sentencing.

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220 (4th Cir. 2005) (holding that the omission of such an

instruction was not reversible error in light of evidence adduced

at trial).

We conclude, however, that Mitre’s sentence violated

United States v. Booker, 125 S. Ct. 738 (2005). Accordingly, we

vacate Mitre’s sentence and remand for resentencing.* Although the

Sentencing Guidelines are no longer mandatory, Booker makes clear

that a sentencing court must still “consult [the] Guidelines and

take them into account when sentencing.” 125 S. Ct. at 767. On

remand, the district court should first determine the appropriate

sentencing range under the Guidelines, making all factual findings

appropriate for that determination. See United States v. Hughes,

401 F.3d 540, 546 (4th Cir. 2005). The court should consider this

sentencing range along with the other factors described in 18

U.S.C. § 3553(a) (2000), and then impose a sentence. Id. If that

sentence falls outside the Guidelines range, the court should

explain its reasons for the departure as required by 18 U.S.C.

§ 3553(c)(2) (2000). Id. The sentence must be “within the

statutorily prescribed range . . . and reasonable.” Id. at 546-47.

AFFIRMED IN PART;

VACATED AND REMANDED IN PART