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United States v. Timothy Jordan ( 2018 )


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  •      Case: 17-40812      Document: 00514529803         Page: 1    Date Filed: 06/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-40812
Fifth Circuit
FILED
Summary Calendar                       June 26, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk
Plaintiff–Appellee,
v.
TIMOTHY JORDAN,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:16-CR-1374-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Timothy Jordan appeals his conviction of one count of conspiracy to
transport and move and attempt to transport and move undocumented aliens
within the United States and five counts of transporting and moving and
attempting to transport and move an undocumented alien within the United
States for commercial advantage and private financial gain and the sentence
imposed.     He argues that the district court violated his rights under the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-40812    Document: 00514529803       Page: 2   Date Filed: 06/26/2018
No. 17-40812
Confrontation Clause by limiting his cross-examination of a Government
witness. He also argues that the district court incorrectly determined that
possession of a commercial driver’s license (CDL) is a special skill within the
meaning of U.S.S.G. § 3B1.3.
This court reviews claimed violations of a defendant’s Sixth Amendment
confrontation right de novo. United States v. Bell,
    367 F.3d 452
    , 465 (5th Cir.
2004). Where a defendant’s constitutional rights are violated, review is for
harmless error. Delaware v. Van Arsdall,
    475 U.S. 673
    , 684 (1986). If there
is no constitutional violation, then this court reviews a district court’s
limitations on cross-examination for an abuse of discretion, which requires a
showing that the limitations were clearly prejudicial. United States v. Restivo,
    8 F.3d 274
    , 278 (5th Cir. 1993).
The record reflects that Jordan had an opportunity to cross-examine the
Government’s witness effectively.      Delaware v. Fensterer,
    474 U.S. 15
    , 20
(1985). The questions that Jordan was prevented from asking the witness
would not have produced relevant evidence. See Holmes v. South Carolina,
    547 U.S. 319
    , 327 (2006).          Moreover, the witness’s answers on cross-
examination contradicted the speculative theory that the defense was seeking
to establish.
    Id. The “district 
    court’s application of section 3B1.3 is a sophisticated factual
determination” that this court reviews for clear error. United States v. Pruett,
    681 F.3d 232
    , 248 (5th Cir. 2012) (internal quotation marks and citation
omitted). Jordan’s argument that possession of a CDL is not a special skill for
purposes of § 3B1.3 is foreclosed. See United States v. Villafranca,
    844 F.3d 199
    , 199 (5th Cir. 2016), cert. denied,
    137 S. Ct. 1393 
    (2017). The district
court’s conclusion that Jordan used his special skill as a licensed commercial
truck driver to commit and conceal the offense is plausible in light of this
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Case: 17-40812   Document: 00514529803     Page: 3   Date Filed: 06/26/2018
No. 17-40812
record. See
    id. at 200; 
    United States v. Cisneros-Gutierrez,
    517 F.3d 751
    , 764
(5th Cir. 2008).
The judgment of the district court is AFFIRMED.
3