IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-30831 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AARON ALEXANDER BOUTTE; DERRICK T. COTLONE,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CR-20034 --------------------

November 3, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Derrick T. Cotlone appeals his conviction and sentence for

conspiracy to distribute cocaine base, or crack. Aaron Alexander

Boutte appeals his convictions and sentence for conspiracy; for

distribution of crack; for unlawful use of a communication

facility, a telephone; and for being a felon in possession of a

firearm.

Cotlone argues that the evidence was insufficient to prove

his guilt beyond a reasonable doubt to the conspiracy count. We

have carefully considered Coltone’s arguments and have reviewed

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-30831 -2-

the appellate record. After drawing all reasonable inferences in

favor of the verdict, we conclude that a reasonable juror would

have found beyond a reasonable doubt Cotlone guilty of the crack

conspiracy. See United States v. Pineda-Ortuno,

(5th Cir. 1992); see also United States v. Maltos,

(5th Cir. 1992) (elements of drug conspiracy).

Boutte states his issue is a challenge to the sufficiency of

the evidence on the count which charged him with unlawful use of

a communication facility, a telephone, in causing or facilitating

a felony, arranging to distribute crack. Boutte’s argument

concerns purported error by the district court in permitting FBI

Special Agent Duenas to testify about the wire transfers and to

give an opinion that the transfers conveyed drug proceeds. The

argument is not germane to Boutte’s stated issue. Thus, the

sufficiency issue is deemed abandoned on appeal. See Yohey v.

Collins,

(5th Cir. 1993); Fed. R. App. P.

28(a)(9).

Boutte argues that he was denied a fair trial by the

district court’s comments during the cross-examination of John

Briggs Becton, Boutte’s probation officer. Boutte unsuccessfully

moved for mistrial on the basis of the court’s comments. From

our review of the record as a whole, we conclude that no harm

ensued from any misstatement by the court in light of the court’s

subsequent admonishment to the jury, the court’s charge to the

jury, and Boutte’s opportunity to recall Becton to the witness

stand. See United States v. Wallace,

(5th Cir.

1994). The district court did not abuse its discretion in No. 98-30831 -3-

denying the motion for mistrial. See United States v. Mitchell,

(5th Cir. 1999).

Boutte challenges the court’s finding concerning the amount

of crack for which he was held responsible in determining his

sentence. We conclude that the district court’s factual finding

is not clearly erroneous. See United States v. Angulo,

(5th Cir. 1991).

AFFIRMED.