IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-20499 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ABSALON MURILLO-GAMBOA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-30-6

March 1, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Absalon Murillo-Gamboa appeals his jury conviction and

sentence for conspiracy to possess with intent to distribute five

kilograms or more of cocaine and 50 grams or more of cocaine base

and aiding and abetting possession with intent to distribute five

kilograms or more of cocaine.

Murillo-Gamboa argues that the district court erred in

admitting his in-court identification because the photograph array

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. was impermissibly suggestive and because the witness saw Murillo-

Gamboa outside the courtroom during the trial. Where the police

have not preserved the photograph array used in a pretrial

photographic line-up, as occurred here, this court presumes that

the array is impermissibly suggestive.1 However, because the

totality of the circumstances demonstrates that the display did not

pose a very substantial likelihood of irreparable

misidentification, the admission of the identification was not

error.2 We also conclude that the fact that the witness saw

Murillo-Gamboa outside of the courtroom was not impermissibly

suggestive and did not create a substantial risk of

misidentification.3

Murillo-Gamboa also argues that the transcripts of wiretap

recordings with notes identifying the speakers should not have been

admitted. The district court did not abuse its discretion in

admitting these transcripts and the supporting testimony of an

agent because the government satisfied the requirements of Federal

Rule of Evidence 901(b)(5).4

1 United States v. Honer,

(5th Cir. 2000). 2 See United States v. Burbridge,

(5th Cir. 2001); Honer,

. 3 See Thompson v. Miss.,

(5th Cir. 1990). 4 See United States v. Lampton,

(5th Cir. 1998).

2 Finally, Murillo-Gamboa argues that the district court erred

in applying a three-level increase pursuant to U.S.S.G. § 3B1.1(b)

because of his role as a manager or supervisor. Where the district

court permissibly adopted the findings of the PSR in the absence of

any rebuttal evidence offered at sentencing by Murillo-Gamboa,5 we

conclude that the district court did not clearly err in light of

the evidence in the record that, inter alia, Murillo-Gamboa

directed others to transport the cocaine in a transaction involving

at least five participants.6

AFFIRMED.

5 See United States v. Davis,

(5th Cir. 2000), cert. denied,

(2001). 6 See United States v. Miranda,

(5th Cir.), cert. denied,

(2001), and cert. denied,

(2002); United States v. Sylvester,

(5th Cir. 1998).

3