     Case: 10-50070 Document: 00511435314 Page: 1 Date Filed: 04/05/2011




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

                                                 FILED
                                                                             April 5, 2011
                                     No. 10-50070
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAYMON VALADEZ, also known as Tio,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 2:08-CR-992-9


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Raymon Valadez, also known as Tio, appeals his jury trial conviction and
sentence for conspiracy to possess with intent to deliver more than 100
kilograms of marijuana. He argues that the district court plainly erred in
admitting evidence of his prior conviction for conspiracy to possess with intent
to distribute marijuana under Rule 404(b) of the Federal Rules of Evidence, that
the district court plainly erred in failing to give jury instructions regarding the
object offense of the conspiracy, that his sentence should be vacated in light of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50070 Document: 00511435314 Page: 2 Date Filed: 04/05/2011

                                  No. 10-50070

United States v. O’Brien, 130 S. Ct. 2169 (2010), and that the district court erred
in determining the amount of drugs attributable to him based on his relevant
conduct.
      Because Valadez did not object to the admission of the evidence of his prior
conviction at trial, review is for plain error. See United States v. Stephens, 571
F.3d 401, 409 (5th Cir. 2009). To show plain error, the appellant must show a
forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes
such a showing, this court has the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      As the district court correctly noted, evidence of Valadez’s past conviction
for the same offense was relevant to show Valadez’s intent to commit the instant
offense. See United States v. Thomas, 348 F.3d 78, 86 (5th Cir. 2003). In
addition, evidence of a defendant’s conviction for a similar crime is more
probative than prejudicial. United States v. Taylor, 210 F.3d 311, 318 (5th Cir.
2000). Further, any prejudicial effect of the evidence was minimized by the
district court’s instructions to the jury. Id. Thus, the district court did not
plainly err in admitting evidence of Valadez’s prior conviction.
      Valadez also argues that the trial court erred in failing to provide the jury
with instructions pertaining to the elements of possession of marijuana with the
intent to distribute. Because Valadez neither requested jury instructions on the
object offense nor objected to the jury instructions that were given, review is for
plain error. See United States v. Betancourt, 586 F.3d 303, 305-06 (5th Cir.
1998).
      “The failure to instruct the jury on the substantive or ‘object’ crimes of a
conspiracy charge is not always plain error.” United States v. Vaglica, 720 F.2d
388, 391 (5th Cir. 1983). Although such an omission may be a serious error, we
have found it to be harmless where, as in this case, the defense raised no

                                        2
    Case: 10-50070 Document: 00511435314 Page: 3 Date Filed: 04/05/2011

                                  No. 10-50070

question as to the elements of the substantive crimes. Id. Valadez’s defense was
that he was not a part of the conspiracy and that any connection to the
smugglers and their activities was coincidental. Accordingly, the district court’s
failure to instruct the jury on the object offense was not plain error under the
circumstances.
      As for Valadez’s argument that his sentence must be vacated in light of
United States v. O’Brien, 130 S. Ct. 2169 (2010), this error was not raised below
and is therefore reviewed for plain error. See United States v. Vonn, 535 U.S. 55,
58-59 (2002). Valadez’s argument is based on an extension of O’Brien, and,
therefore, cannot involve a clear or obvious error. See United States v. Trejo, 610
F.3d 308, 319 (5th Cir. 2010).
      We further find that the district court did not clearly err in determining
that Valadez was responsible for 497.08 kilograms of marijuana. The evidence
reflects that drug trafficking activities described in the presentence report (PSR)
were substantially connected to the instant offense by common purpose and a
similar modus operandi, and therefore the district court did not clearly err in
finding that this activity constituted relevant conduct. See United States v.
Rhine, 583 F.3d 878, 885 (5th Cir. 2009). Although Valadez contends that the
information in the PSR did not have sufficient indicia of reliability, he has
presented no rebuttal evidence to show that the information contained in the
PSR was inaccurate or materially untrue, see United States v. Washington, 480
F.3d 309, 320 (5th Cir. 2007), and has failed to demonstrate that the district
court’s drug-quantity calculation was clearly erroneous in light of the record as
a whole. See Betancourt, 422 F.3d at 246.
      The judgment of the district court is AFFIRMED.




                                        3
