United States v. Fernando Herrera

Case: 09-40788 Document: 00511237451 Page: 1 Date Filed: 09/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 17, 2010
No. 09-40788
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FERNANDO HERRERA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:09-CR-129-2
Before GARWOOD, PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
Fernando Herrera was indicted along with co-defendant Magdel
Hernandez for conspiracy to possess with intent to distribute 436.45 kilograms
of marijuana (Count 1) and possession with intent to distribute 436.45 kilograms
of marijuana (Count 2). Hernandez pleaded guilty to Count 2 and testified
against Herrera at his trial. The jury found Herrera guilty of both counts. In
July 2009, the district court sentenced Herrera to 78 months of imprisonment
and four years of supervised release on each count, to be served concurrently.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40788 Document: 00511237451 Page: 2 Date Filed: 09/17/2010
No. 09-40788
Herrera argues that his Sixth Amendment Confrontation Clause rights
were violated and that the district court abused its discretion when it prevented
him from questioning Hernandez concerning a prior charge in Florida against
Hernandez.1
The Confrontation Clause of the Sixth Amendment guarantees the right
of a criminal defendant to confront the witnesses against him. Delaware v. Van
Arsdall, 475 U. S. 673, 678 (1986). However, Herrera has not met his burden of
showing that the jury would have received a significantly different impression
of Hernandez’s credibility if the cross-examination had not been limited. See
United States v. Davis, 393 F.3d 540, 548 (5th Cir. 2004). Furthermore, Herrera
was allowed to cross-examine Hernandez about the prior charge or arrest to the
extent that the dismissal of the charges would have affected his motivation to
testify. Additionally, due to the extent of the cross-examination of Hernandez
that district court did allow, the corroboration, to some extent, of Hernandez’s
testimony, and the overall strength of the Government’s case, any error by the
district court was harmless. See Van Arsdall, 475 U. S. at 684. For the same
reasons, to the extent that there was a nonconstitutional violation, Herrera has
not shown that the district court abused its discretion in limiting cross
examination. See United States v. Gray, 105 F.3d 956, 965 (5th Cir. 1997).
Herrera also argues that the district court committed plain error by
providing him with the presentence report less than 35 days before sentencing
in violation of F ED . R. C RIM . P. 32(e)(2).2 Because Herrera has not shown, nor
1
Defense counsel asked Hernandez if “at one time” he “had a charge pending against
you.” The government’s objection was sustained. Pretrial proceedings reflect that there was
no conviction and that the Florida charges referred to were dismissed. Further cross-
examination reflected that Hernandez had made no arrangement with the government in this
case with reference to the dismissal of any other charges against him “in this or any other
jurisdiction.”
2
Sentencing was July 22, 2009. The PSR reflects that it is a report which was prepared
June 30, 2009 and “Revised” July 20, 2009. Nothing in the record before us (or in the briefs)
reflects what the revision or revisions was or were or anything about them.
2
Case: 09-40788 Document: 00511237451 Page: 3 Date Filed: 09/17/2010
No. 09-40788
does the record indicate, that he was prejudiced 3 by the alleged failure of the
probation officer to furnish him with a copy of the PSR within 35 days of
sentencing, he has not demonstrated plain error. See United States v.
Esparza-Gonzalez, 268 F.3d 272, 274 (5th Cir. 2001).
AFFIRMED.
3
Indeed, Herrera concedes in his brief that “[t]here is nothing in the record to
demonstrate whether the shortened time for review of the PSR affected Mr. Herrera
adversely.”
At sentencing appellant stated his attorney had read the PSR to him. Also defense
counsel stated that the PSR had correctly calculated the advisory guideline range at 78 to 97
months. No objections were made to the PSR. Nor was any objection made either that the
time to review it was inadequate or was less than the 35 days provided by Rule 32(e)(2).
3