United States v. Galvan , 133 F. App'x 154 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 7, 2005
Charles R. Fulbruge III
Clerk
No. 04-40943
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO GALVAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-82-1
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Guillermo Galvan appeals his conviction by jury for
possession of six grams of cocaine and 79 grams of marijuana with
the intent to distribute, in violation of 21 U.S.C. § 841(a)(1),
and resulting 262-month sentence. His argument that the evidence
was insufficient to support his conviction fails under any
standard given that he confessed several times that he was
bringing the drugs to a fellow gang member named Flaco. Galvan’s
argument that he was convicted solely on his own uncorroborated
*
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this opinion should not be published and is not precedent except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. 04-40943
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confession is unpersuasive because the Government presented
evidence fortifying the truth of Galvan’s statements, including
evidence that the drugs’ packaging had not been disturbed (which
would otherwise indicate personal use); Sloss’s testimony
confirming that she had received money from Flaco the day before
she and Galvan left Mission, Texas, and that Flaco was a friend
of hers and Galvan’s; and by Ortegon’s testimony that Galvan was
a member of the Almighty Latin Kings gang. See United States v.
DeVille, 278 F.3d 500, 506-07 (5th Cir. 2002).
Galvan next urges that the district court reversibly erred
in refusing to give a requested jury instruction to the effect
that the quantity of drugs involved could be consistent with
personal use and did not give rise to an inference of intent to
distribute. The argument fails because the substance of the
requested jury instruction was in fact included in the court’s
charge, which instructed the jury that it could find the
defendant guilty of the lesser included offense of mere
possession. See United States v. Morales, 272 F.3d 284, 289 (5th
Cir. 2001). The claim fails for the additional reason that
Galvan’s defense was not impaired by the lack of the instruction
given that he was able to argue that the drugs could have been
for his personal use and presented evidence to that effect. Id.
Galvan next urges that the district court abused its
discretion in admitting evidence of his gang membership,
including a photograph of him showing a gang tattoo, asserting
No. 04-40943
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that the evidence was at best only marginally relevant but that
its prejudicial effect outweighed any probative value and thus
should have been excluded under FED. R. EVID. 403.
Even assuming, without deciding, that the district court
abused its discretion in admitting the challenged evidence, the
error is harmless given the other substantial evidence of
Galvan’s guilt, including his multiple confessions. See United
States v. Haese, 162 F.3d 359, 364 (5th Cir. 1998); United States
v. Rodriguez, 43 F.3d 117, 123 (5th Cir. 1995). Galvan has not
demonstrated any reversible error in connection with his
conviction, and his conviction is AFFIRMED.
Regarding the sentence imposed, Galvan renews the argument,
preserved in the district court, that his constitutional rights
were violated when the district court sentenced him as a career
offender under U.S.S.G. § 4B1.1 based on facts regarding his
prior convictions which were neither pleaded in the indictment
nor proved beyond a reasonable doubt, citing Blakely v.
Washington, 124 S. Ct. 2531 (2004) and United States v. Booker,
125 S. Ct. 738, 756 (2005). He further contends that the career-
offender adjustment was error because one his prior conviction
for burglary of a habitation was not a “crime of violence.”
These claims fail because a sentencing judge’s determination of
career-offender status, including whether a prior conviction is a
“crime of violence,” does not implicate Booker. United States v.
No. 04-40943
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Guevara, ___ F.3d ___, No. 03-11299, 2005 WL 1009772, *6 (5th
Cir. May 2, 2005).
Galvan also urges that the district court erred in
concluding that it lacked the authority under the guidelines to
depart downwardly. Even if it is assumed that Galvan did not
preserve the objection adequately in the district court, the
district court plainly erred in imposing Galvan’s sentence under
a mandatory guidelines scheme. See United States v. Valenzuela-
Quevedo, __ F.3d __, No. 03-41754, 2005 WL 941353 at *4 (5th Cir.
Apr. 25, 2005). The error affected his substantial rights
because it appears from the district court’s comments at
sentencing that it would have imposed a lighter sentence under an
advisory guidelines scheme. See, e.g., United States v. Pennell,
F.3d , No. 03-50926, 2005 WL 1030123 at *5 (5th Cir. May
4, 2005). Consequently, Galvan’s sentence is VACATED, and the
case is REMANDED for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
RESENTENCING.