     Case: 15-40275   Document: 00513630580   Page: 1   Date Filed: 08/09/2016




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


                               No. 15-40275
                                                                       FILED
                                                                  August 9, 2016
                             Summary Calendar
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

MIGUEL ANGEL VIVES-MACIAS,

                                         Defendant-Appellant


consolidated with 15-40296

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

EDGAR LOERA,

                                         Defendant-Appellant


                Appeals from the United States District Court
                     for the Southern District of Texas
                          USDC No. 5:13-CR-808-21
                          USDC No. 5:13-CR-808-6


Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit
Judges.
     Case: 15-40275      Document: 00513630580         Page: 2    Date Filed: 08/09/2016


                                     No. 15-40275
                                   c/w No. 15-40296
PER CURIAM: *
       Miguel Angel Vives-Macias and Edgar Loera appeal following their jury
trial convictions of conspiring to import and possess with intent to distribute
heroin and methamphetamine (Vives-Macias and Loera) and aiding and
abetting others in importing and possessing with intent to distribute heroin
(Vives-Macias only). 21 U.S.C. §§ 846, 841, 841(b)(1)(A), 963, 952(a), 960(a)(1),
960(b)(1)(A) & (H); 18 U.S.C. § 2. The district court sentenced Loera to 225
months of imprisonment and Vives-Macias to 188 months, and the court also
imposed supervised release and monetary penalties. We affirm.
       We reject Vives-Macias’s claim that the evidence was insufficient to
support his convictions. For a drug conspiracy conviction under either statute,
the Government must prove: “(1) an agreement between two or more persons
to violate the narcotics laws, (2) the defendant’s knowledge of the agreement,
and (3) the defendant’s voluntary participation in the conspiracy.” United
States v. Booker, 334 F.3d 406, 409 (5th Cir. 2003) (construing § 846); see
United States v. Hernandez-Palacios, 838 F.2d 1346, 1348-49 (5th Cir. 1988)
(same for §§ 846 & 963). Witnesses testified that Vives-Macias arranged a
driver to bring a Volkswagen Jetta loaded with drugs from Mexico into the
United States at Laredo, Texas. Authorities discovered several kilograms of
heroin in the vehicle during an inspection. Vives-Macias fails to show that no
rational trier of fact could have found him guilty of the essential elements of
the conspiracy beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318 (1979).




       * 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.



                                             2
    Case: 15-40275    Document: 00513630580     Page: 3     Date Filed: 08/09/2016


                                 No. 15-40275
                               c/w No. 15-40296
      “Once the conspiracy was established, [Vives-Macias] could be found
liable for all offenses committed in furtherance of the conspiracy while he was
a member, as long as the offenses were in the scope of or were a foreseeable
consequence of the conspiracy.” United States v. Parrish, 736 F.2d 152, 157
(5th Cir. 1984) (citing Pinkerton v. United States, 328 U.S. 640 (1946)). A
rational trier of fact could have found that it was foreseeable that Vives-
Macias’s co-conspirator would import and possess with intent to distribute
drugs as a consequence of his conspiring with Vives-Macias to do just that. See
Jackson, 443 U.S. at 318.
      Loera contends that the district court violated his constitutional right to
confront the witnesses against him when it generally prohibited recross-
examination. Loera does not identify a single instance when he asked to
recross-examine a witness but was refused or when he objected to the general
limitation. Accordingly, we review for plain error. United States v. Acosta, 475
F.3d 677, 680 (5th Cir. 2007). To establish plain error, Loera must show (1) a
forfeited error (2) that is clear or obvious and (3) that affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, this court has discretion to correct the error only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. We have carefully reviewed the trial transcript and conclude
that any error did not affect Loera’s substantial rights.
      Although Loera also argues that the district court improperly excluded
evidence as hearsay and that this impinged on his constitutional right to
present a defense, any error was harmless given the testimony that the jury
nevertheless heard. See FED. R. EVID. 103(a); FED. R. CRIM. P. 52(a); United
States v. Towns, 718 F.3d 404, 407 (5th Cir. 2013). In addition, Loera fails to
show that the district court abused its discretion in excluding the testimony of



                                       3
    Case: 15-40275     Document: 00513630580      Page: 4    Date Filed: 08/09/2016


                                  No. 15-40275
                                c/w No. 15-40296
a 10-year old boy, which had limited probative value and was highly
prejudicial. FED. R. EVID. 403; Towns, 718 F.3d at 407.
      We reject Loera’s claims that the district court plainly erred in
instructing the jury regarding the reasonable doubt standard and that this
error was compounded by improper closing argument by the prosecutor. Loera
did not object to the instruction or to the prosecutor’s argument. We review for
plain error. United States v. Boyd, 773 F.3d 637, 644 (5th Cir. 2014); United
States v. Knezek, 964 F.2d 394, 400 (5th Cir. 1992).
      “[T]he use of an unobjected-to pattern jury instruction rarely will rise to
the level of plain error.” United States v. Reff, 479 F.3d 396, 402 (5th Cir. 2007).
The instruction here closely follows the current pattern instruction, and a case
on which Loera relies, United States v. Clayton, 643, F.2d 1071, 1075 (5th Cir.
Unit B 1981), commends the district court’s approach. Thus, Loera fails to
show clear or obvious error in the jury instruction. See Puckett, 556 U.S. at
135. He also fails to identify controlling authority that shows that any error
in the prosecutor’s closing argument is clear or obvious. See id.
      Vives-Macias challenges the district court’s application of a two-level
leadership or management role enhancement under U.S.S.G. § 3B1.1(c). Given
the trial testimony, we conclude that the district court’s factual finding is
plausible in light of the record as a whole. United States v. Zuniga, 720 F.3d
587, 590 (5th Cir. 2013).
      AFFIRMED.




                                         4
