IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40788

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

F I L E D

September 17, 2010

Lyle W. Cayce

Clerk

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. 09-40788

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 FED. R. CRIM. P. 32(e)(2). Because Herrera has not shown, nor

2

Defense counsel asked Hernandez if “at one time” he “had a charge pending against

1

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 crossexamination 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.” 

Sentencing was July 22, 2009. The PSR reflects that it is a report which was prepared 2

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

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No. 09-40788

does the record indicate, that he was prejudiced by the alleged failure of the

3

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.

Indeed, Herrera concedes in his brief that “[t]here is nothing in the record to 3

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). 

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Case: 09-40788 Document: 00511237451 Page: 3 Date Filed: 09/17/2010