     Case: 09-40095     Document: 00511246633          Page: 1    Date Filed: 09/28/2010




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

                                                 FILED
                                                                        September 28, 2010
                                     No. 09-40095
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CRUZ VILLEGAS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                            USDC No. 7:06-CR-1089-13


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Cruz Villegas was convicted by a jury of conspiring to possess with intent
to distribute more than 100 but less than 1,000 kilograms of marijuana and
more than five kilograms of cocaine and conspiring to use and carry a firearm
during and in relation to a drug trafficking crime. He was also convicted by a
jury of possessing with intent to distribute more than five kilograms of cocaine.
Villegas now appeals his convictions and his concurrent sentences of 200 months
of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                 No. 09-40095

      Villegas contends that the district court erred in admitting evidence
regarding the gang membership of his co-defendants.         He argues that the
evidence was inadmissible under Federal Rule of Evidence 404(b).
      To 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
evidence must possess probative value not substantially outweighed by its undue
prejudice and must meet the remaining requirements of Federal Rule of
Evidence 403. United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006). Under
Rule 403, [a]lthough relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury.” F ED. R. E VID. 403.
      The Government’s evidence showed that Villegas’s co-defendant, Jesus
Espinoza, who was also on trial, was the leader of a gang, and that others who
participated in criminal acts were also gang members. The evidence of gang
membership was relevant to show Espinoza’s culpability in those criminal acts.
Because the evidence of gang membership was relevant to an issue other than
character, it was not prohibited under Rule 404(b). See Arnold, 467 F.3d at 885;
United States v. Ramos Rodriguez, 926 F.2d 418, 421 (5th Cir. 1991). Any undue
prejudice suffered by Villegas, who was not affiliated with a gang, was alleviated
by 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
it is offered.”). The district court did not abuse its discretion in admitting the
evidence of gang membership. See Arnold, 467 F.3d at 885.
      Challenging his sentence, Villegas contends that the district court erred
by 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
was not a leader or organizer, because did not have a background in gang-related
criminal 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

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                                 No. 09-40095

participants because he was merely the driver and did not exit the car to
threaten the victims. He also contends that he is less culpable than the other co-
conspirators because he participated in only two of four criminal acts.
      The defendant bears the burden of proving that he was a minor
participant in the offense. United States v. Garcia, 242 F.3d 593, 597 (5th Cir.
2001). The district court’s refusal to grant a § 3B1.2 reduction is entitled to
great deference. United States v. Devine, 934 F.2d 1325, 1340 (5th Cir. 1991).
      The record shows that Villegas participated in two criminal acts that
benefitted the conspiracy.     He drove a vehicle that was involved in the
carjacking, an undertaking that resulted in the conspiracy obtaining
approximately 10 kilograms of cocaine. Villegas was also involved in an October
2, 2006, home invasion, through which the conspiracy obtained at least 18
kilograms of marijuana.      Villegas’s activities were not peripheral to the
advancement of the illicit activity. See United States v. Villanueva, 408 F.3d
193, 203-04. (5th Cir. 2005). He has not shown that the district court clearly
erred in denying a reduction for a minor role in the offense. See id.
      The judgment of the district court is AFFIRMED.




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