United States v. Cunningham

117 F. App'x 373

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 4, 2005
• Docket: 04-40016
• Status: Unpublished

Opinion

PER CURIAM: *

Following a jury trial, Bernard Cunningham was convicted of one charge of possession of more than one hundred kilograms of marijuana with intent to distribute. The district court sentenced him to serve eighty-four months in prison and a five-year term of supervised release.

Cunningham argues that plain error resulted from the admission of testimony concerning an offer to transport drugs. He argues that this testimony amounts to hearsay and does not fall under the exception to the hearsay rule for coconspirator statements embodied in Fed.R.Evid. 801(d)(2). The disputed testimony does not amount to hearsay, as it concerns a question or inquiry. See United States v. Lewis, 902 F.2d 1176, 1179 (5th Cir.1990). Cunningham has not shown plain error in connection with the admission of the disputed testimony.

Cunningham also contends that the statute of conviction, 21 U.S.C. § 841, is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This argument is, as he concedes, unavailing. See United States v. Slaughter, 238 F.3d 580 (5th Cir. 2000).

Cunningham has not shown reversible error in connection with his conviction and sentence. Accordingly, the judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.