          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 December 10, 2009
                                No. 09-50069
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

ERIC PAUL KRUEGER,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 7:08-CR-49-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Eric Paul Krueger appeals his jury conviction for conspiracy to distribute
and to possess with intent to distribute 50 or more grams of methamphetamine
for which he was sentenced to life imprisonment. He argues that the evidence
is insufficient to support his conviction. We will find the evidence sufficient to
convict “if a reasonable trier of fact could conclude from the evidence that the
elements of the offense were established beyond a reasonable doubt, viewing the



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 09-50069

evidence in the light most favorable to the verdict and drawing all reasonable
inferences from the evidence to support the verdict.” United States v. Floyd, 343
F.3d 363, 370 (5th Cir. 2003) (internal quotation marks and citation omitted).
Our “review of the sufficiency of the evidence does not include a review of the
weight of the evidence or of the credibility of the witnesses.” Id.
      To prove a conspiracy to distribute a controlled substance, the Government
must establish: (1) the existence of an agreement between two or more persons;
(2) the defendant’s knowledge of an agreement; (3) the defendant’s voluntary
participation in the conspiracy; and (4) that the overall scope of the conspiracy
involved the drug quantity charged. United States v. Jimenez, 509 F.3d 682, 689
(5th Cir. 2007), cert. denied, 128 S. Ct. 2924 (2008). “[E]ach element of the crime
may be established by circumstantial evidence.” United States v. Infante, 404
F.3d 376, 385 (5th Cir. 2005). The jury may consider that some witnesses
testified pursuant to immunity or plea agreements in determining credibility.
United States v. Burns, 526 F.3d 852, 860 (5th Cir. 2008).
      A review of the evidence indicates that a reasonable trier of fact could have
found beyond a reasonable doubt that Krueger was guilty of conspiracy to
possess with intent to distribute 50 or more grams of methamphetamine. See
Floyd, 343 F.3d at 370. The trial evidence established the following. In 2006
and 2007, Rickey and Lavon Haggard made approximately five trips to Fort
Worth, Texas, with Spencer Coker to purchase methamphetamine in quantities
of one-half pound to two pounds. Coker purchased a total of approximately eight
to ten ounces of methamphetamine from Krueger.           Over the course of the
conspiracy, Coker sold “pounds” or over five kilograms of methamphetamine,
some of which he obtained from Krueger.            Crystal Burchett and Jancy
Cunningham testified that they were with Coker when he purchased
methamphetamine from Krueger.               Cunningham and Coker purchased
methamphetamine from Krueger and Mike Gomez. Gomez testified that he had



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known Krueger since 2005 and that he purchased methamphetamine from
Krueger and subsequently sold methamphetamine to Krueger.
      The Government presented evidence concerning these witnesses’ prior
convictions,   plea   agreements,    and/or   immunity   agreements    with   the
Government. Determining the credibility of these witnesses was within the sole
province of the jury, and we do not review the credibility of the witnesses. See
United States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994); see also Floyd, 343
F.3d at 370. Based on this evidence, a reasonable trier of fact could have found
beyond a reasonable doubt that Krueger was guilty of conspiracy to possess with
intent to distribute 50 or more grams of methamphetamine. See Jimenez, 509
F.3d at 689; see also Floyd, 343 F.3d at 370.
      Krueger argues that the district court erred in admitting evidence of his
prior convictions. He argues that a defendant does not necessarily raise intent
as an issue merely by pleading not guilty. Krueger has not shown that the
district court abused its discretion in admitting the evidence of his prior
convictions to show intent. See United States v. Gonzalez, 76 F.3d 1339, 1347-48
(5th Cir. 1996). By pleading not guilty, Krueger raised the issue of intent
sufficiently to permit the district court to admit the evidence of his prior
convictions. See id. The district court determined that the probative value of
Krueger’s two prior convictions for delivery of a controlled substance outweighed
the prejudicial effect and held that evidence of these convictions was admissible.
Further, the district court minimized the danger of unfair prejudice by
instructing the jury regarding the limited purposes for which it could consider
the evidence of Krueger’s prior convictions. See United States v. Booker, 334
F.3d 406, 411-12 (5th Cir. 2003).
      The crime charged in the indictment differs from the description of the
crime set forth in the judgment.        The indictment charged Krueger with
conspiracy to distribute and possess with intent to distribute 50 grams or more
of methamphetamine and five kilograms or more of cocaine. The district court

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dismissed the allegation in the indictment concerning Krueger’s alleged
involvement with cocaine.      The judgment reflects that the jury convicted
Krueger of conspiracy to possess with intent to distribute 50 grams or more of
methamphetamine. Accordingly, this matter is remanded to the district court
for the limited purpose of correction of the clerical error in the judgment
pursuant to F ED. R. C RIM. P. 36.
      AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR
IN JUDGMENT.




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