USA v. Villegas

Filing

UNPUBLISHED OPINION FILED. [09-40095 Affirmed] Judge: EHJ , Judge: EGJ , Judge: LHS. Mandate pull date is 10/19/2010 for Appellant Cruz Villegas [09-40095]

USA v. Villegas

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Case: 09-40095

Document: 00511246633

Page: 1

Date Filed: 09/28/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40095 S u m m a r y Calendar September 28, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. C R U Z VILLEGAS, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:06-CR-1089-13

B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. P E R CURIAM:* C r u z Villegas was convicted by a jury of conspiring to possess with intent t o distribute more than 100 but less than 1,000 kilograms of marijuana and m o r e than five kilograms of cocaine and conspiring to use and carry a firearm d u r in g and in relation to a drug trafficking crime. He was also convicted by a ju r y of possessing with intent to distribute more than five kilograms of cocaine. Villegas now appeals his convictions and his concurrent sentences of 200 months o f imprisonment.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 09-40095

Document: 00511246633 Page: 2 No. 09-40095

Date Filed: 09/28/2010

V ille g a s contends that the district court erred in admitting evidence r e g a r d in g the gang membership of his co-defendants. He argues that the

e v id e n c e was inadmissible under Federal Rule of Evidence 404(b). T o be admissible under Rule 404(b), evidence must pass a two-part test: (1 ) the evidence must be relevant to an issue other than character; and (2) the ev id en ce must possess probative value not substantially outweighed by its undue p r e ju d ic e and must meet the remaining requirements of Federal Rule of E v id e n c e 403. United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006). Under R u le 403, [a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the is s u e s , or misleading the jury." FED. R. EVID. 403. T h e Government's evidence showed that Villegas's co-defendant, Jesus E s p in o z a , who was also on trial, was the leader of a gang, and that others who p a r t i c ip a t e d in criminal acts were also gang members. The evidence of gang m e m b e r s h ip was relevant to show Espinoza's culpability in those criminal acts. Because the evidence of gang membership was relevant to an issue other than c h a r a c t e r , it was not prohibited under Rule 404(b). See Arnold, 467 F.3d at 885; U n ite d States v. Ramos Rodriguez, 926 F.2d 418, 421 (5th Cir. 1991). Any undue p r e ju d ic e suffered by Villegas, who was not affiliated with a gang, was alleviated b y the district court's jury instructions. See Ramos Rodriguez, 926 F.2d at 421 (" [A ] jury is generally capable of properly applying evidence only against whom i t is offered."). The district court did not abuse its discretion in admitting the e v id e n c e of gang membership. See Arnold, 467 F.3d at 885. C h a lle n g in g his sentence, Villegas contends that the district court erred b y denying a reduction for a minor role in the offense under U.S.S.G. § 3B1.2. He argues that he was less culpable than the other co-conspirators because he w a s not a leader or organizer, because did not have a background in gang-related c r im in a l activities, and because he did not personally possess a weapon. As to a carjacking incident, Villegas maintains that he had a lesser role than the other 2

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Date Filed: 09/28/2010

p a r tic ip a n t s because he was merely the driver and did not exit the car to t h r e a te n the victims. He also contends that he is less culpable than the other coc o n s p ir a t o r s because he participated in only two of four criminal acts. T h e defendant bears the burden of proving that he was a minor p a r tic ip a n t in the offense. United States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2 0 0 1 ). The district court's refusal to grant a § 3B1.2 reduction is entitled to g r e a t deference. United States v. Devine, 934 F.2d 1325, 1340 (5th Cir. 1991). The record shows that Villegas participated in two criminal acts that b e n e fitt e d the conspiracy. He drove a vehicle that was involved in the

c a r ja c k in g , an undertaking that resulted in the conspiracy obtaining a p p r o x im a t e ly 10 kilograms of cocaine. Villegas was also involved in an October 2 , 2006, home invasion, through which the conspiracy obtained at least 18 k ilo g r a m s of marijuana. Villegas's activities were not peripheral to the

a d v a n c e m e n t of the illicit activity. See United States v. Villanueva, 408 F.3d 1 9 3 , 203-04. (5th Cir. 2005). He has not shown that the district court clearly e r r e d in denying a reduction for a minor role in the offense. See id. T h e judgment of the district court is AFFIRMED.

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