UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4704



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BAUTISTA ANDAYA-PENALOSA,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-04-253-WLO)


Submitted:   July 31, 2006             Decided:     September 6, 2006


Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. C. Castillo, Houston, Texas, for Appellant. Anna Mills Wagoner,
United States Attorney, Randall S. Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Bautista Andaya-Penalosa was convicted after a jury trial

of conspiracy to distribute five kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), 846 (2000), and conspiracy to

knowingly conduct financial transactions involving proceeds of

unlawful activities, in violation of 18 U.S.C.A. § 1956(h) (West

Supp. 2006) (money laundering).      He was acquitted of possession of

a firearm by a person previously convicted of a felony, 18 U.S.C.

§§ 922(g)(1), 924(a)(2) (2000).        We affirm his convictions and

sentence.

            Andaya-Penalosa first contends that the district court

erred by allowing the government an additional peremptory strike

during jury selection, which the government used to strike a

prospective juror that was deemed favorable to the Defendant.

Andaya-Penalosa    contends   that   the   dismissal   of   the   not-yet-

empaneled jury and starting jury selection anew did not cure the

error.   A “defendant in a criminal case cannot complain of error

which he himself has invited.”       See Shields v. United States, 

, 586 (1927). Andaya-Penalosa had objected to the granting

of the additional strike.     The district court agreed that it was

error under Fed. R. Crim. P. 24, declared a mistrial, and dismissed

the jury.     Because Andaya-Penalosa invited the error, he cannot

object because the court sustained his objection. United States v.

Jackson, 

, 617 (4th Cir. 1997) (“invited error doctrine


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recognizes that a court cannot be asked by counsel to take a step

in a case and later be convicted of error, because it has complied

with such request”) (internal quotation marks omitted).

              Moreover, Andaya-Penalosa participated in the selection

of a new jury and was ultimately satisfied with the impartiality of

that jury.         Because he was tried before a properly-selected,

impartial jury, Andaya-Penalosa cannot show that he was prejudiced

by the granting of an additional strike to the Government, which

was used to select a jury that was dismissed and not impaneled.

See United States v. Potts, 

, 965 (4th Cir. 1970)

(noting     that    trial   court   erred     in     granting   two   additional

peremptory strikes to each party based on their agreement, but

finding no harm to defendant because the result was an impartial

jury).

              Next, Andaya-Penalosa contends that the district court

erred in allowing evidence of his guilty plea to a charge of

possession of cocaine in California. He contends that this was not

a   prior     felony    conviction,     and   therefore      the   evidence   was

inadmissible.       We find that the evidence was properly admitted to

prove an element of the charged offense of possession of a firearm

by a convicted felon.         United States v. Rhodes, 

, 871

(4th   Cir.    1994).       Moreover,    we   find    that   the   evidence   was

sufficient to prove that element. See California v. Carr, 204 Cal.




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App. 3d 774, 778 (Cal. App. 1988); California v. Banks, 

(Cal. 1959).

          Additionally, we find no abuse of discretion by the

district court in admitting the immigration documents on which

Andaya-Penalosa admitted his prior conviction.     United States v.

Rivera, 

, 571 (4th Cir. 2005); United States v.

Simpson, 

(4th Cir. 1990).     Moreover, because he was

acquitted on the § 922(g)(1) charge, Andaya-Penalosa cannot show

that he was prejudiced by the admission of this evidence.

          Next, Andaya-Penalosa contends that the district court

should have instructed the jury that, in determining the drug

quantity attributable to Andaya-Penalosa, they must determine the

quantity that was in furtherance of the conspiracy and reasonably

foreseeable to Andaya-Penalosa.    Instead, the jury was instructed

to answer a special inquiry as to whether the conspiracy was

involved with five kilograms or more of cocaine.     Andaya-Penalosa

contends that the failure to instruct the jury to find his personal

involvement was in violation of Pinkerton v. United States, 

, 647-48 (1946), and United States v. Collins, 

, 314 (4th Cir. 2005).   Because he failed to raise this issue in

the district court, our review is for plain error.    United States

v. Olano, 

, 732 (1993).

          Assuming, without deciding, that this was error and that

Andaya-Penalosa’s substantial rights were affected, in light of the


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overwhelming evidence of the drug quantities with which Andaya-

Penalosa was involved and his admission at sentencing that he was

responsible for at least five kilograms of cocaine, we decline to

exercise our discretion to notice the error.         See United States v.

Cotton, 

, 633 (2002) (holding that sentence exceeding

maximum authorized by facts alleged in the indictment would not be

vacated on plain error review because evidence supporting judge-

found facts on which sentence was based was “overwhelming” and

“essentially uncontroverted”).      As in Cotton, much of the evidence

implicating Andaya-Penalosa in the drug conspiracy revealed his

involvement    with   far   more   than    five   kilograms   of   cocaine;

additionally, he admitted to that amount.            Thus, we decline to

recognize any error.    See 

final issue Andaya-Penalosa raises is whether his

sentence was invalid in light of the failure to properly instruct

the jury.     As stated above, we decline to recognize any error in

the determination of the sentencing parameters.           Concerning the

imposition of a sentence within the statutory limits determined by

the jury, we find no error.        Even without consideration of the

jury’s answer to the special inquiry, Andaya-Penalosa admitted that

he was accountable for five kilograms of cocaine.              See United

States v. Booker, 

(2005) (allowing sentencing range to

be increased based on admissions by defendant).           This admission

placed Andaya-Penalosa in the statutory sentencing range of twenty


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years to life.    21 U.S.C. § 841(b)(1)(A).   As permitted by Booker,

the district court then made the relevant factual findings within

this statutory range by a preponderance of the evidence.         See

United States v. Morris, 

, 71-72 (4th Cir. 2005),

petition for cert. filed,        U.S.L.W.       (U.S. Apr. 10, 2006)

(No. 05-11378).     The court ultimately sentenced Andaya-Penalosa

within the advisory guideline range of life imprisonment.       This

sentence is presumptively reasonable.    United States v. Green, 

, 455-56 (4th Cir. 2006), cert. denied, 

(2006).

          In conclusion, we affirm Andaya-Penalosa’s convictions

and sentence. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                            AFFIRMED




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