### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-41127

UNITED STATES OF AMERICA Plaintiff - Appellee
v.SIPRIANO GALAZ-PEREZ; REYNALDO ENRIQUE VASQUEZFERNANDEZ; Defendants - Appellants

Appeals from the United States District Court for the Eastern District of Texas USDC No. 4:10-CR-242-3

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges. PER CURIAM: * Defendants-Appellants Sipriano Galaz-Perez and Re ynaldo Enrique Vasquez-Fernandez (collectively, the “Defendants”) appeal their convictions for conspiracy to possess with intent to distribute more than five hundred grams of

a substance containing methamphetamine, in violation o f 21 U .S.C. §§ 8 41(a)(1) and 846. We AFFIRM.

I. BACKGROUND AND PROCEDURAL HISTORY U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 30, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-41127 Document: 00512224692 Page: 1 Date Filed: 04/30/2013No. 11-41127

Juan Rios was a rrested for possessing methamphetamine and eventually pleaded guilty to conspiring to possess with intent to distribute the substance. As p art of his cooperation w ith law enforcement, Rios convinced Pedro SanchezRios to transport five p ounds of m e t h a m p h e tamine from O klahoma City to a purchaser in Texas. During the transport, law enforcement officers detained the vehicle c arrying the methamphetamine, but Rios and Sanchez-Rios—who were traveling in separate vehicles—drove away and were not arrested. Having lost the drugs, Sanchez-Rios asked Rios if his T exas buyer would purchase more methamphetamine. Sanchez-Rios then asked V a s quezFernandez—who had s upplied Sanchez-Rios with narcotics ab o u t ten times previously—to loan him more methamphetamine for the transaction. SanchezRios promised Vasquez-Fernandez that he could keep the proceeds of the sale. Sanchez- Ri o s l a t e r m e t w ith V a s qu e z - F e r n a ndez and Galaz-Perez, and the group discussed s e l ling five pounds of methamphetamine to Rios’s purchaser. The nex t d a y , t h e three met with Rios at a restaurant in Gainesville, Texas. During this meeting, Sanchez-Rios explained to Rios t hat Vasquez-Fernandez and Galaz-Perez o wned the drugs and that he owed them around $300,000. Rios requested to see the methamphetamine, but Vasquez-Fernandez refused until he saw the money and met the buyer. In response, Rios backed o ut o f the deal and told the Defendants that they could meet the buyer a t a restaurant in Sanger, Texas. L ater that day, a police officer pulled o ver a vehicle drive n b y Sanchez-Rios. No drugs were found, but the Defendants were arrested. At trial, Rios a nd Sanchez-Rios testified along with six other G overnment witnesses. A j ury convicted the D efendants of c onspiracy to possess with intent to di stribute methamphetamine, and the dis t ri c t c o u rt s e n t e n c e d e a ch defendant to 235 months imprisonment and five y ears of supervised release. The Defendants timely appealed. II. DISCUSSION

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The Defendants appeal their convictions based o n: (1) t he district court’s limitation of Rios’s cross-examination, which they claim v i o l a t ed their Sixth Amendment confronta t i on r ights, and (2) the alleged insufficiency of evidence supporting their convictions. We reject both challenges. A. R i o s ’ s C r o s s - E x am i n at i o n S atisfied t h e C o n f r o nt at i o n C l a u s e During Rios’s c r o s s-examination, the Defendants sought to introduce details related to h is convictions for the unauthorized u s e o f a c redit card, the obtaining of money b y f a lse p retenses, and a theft over $1,500. The district court limited the scope of questioning concerning these convictions, however, to only the fact of the convictions and name of t he offenses. Because t h e D e f e n d a n t s objected under F ederal Rule of Evidence 4 05(b), rather than the Confrontation Clause, we review f

or plain e rror. See United States v. Acosta , 475 F.3d 677, 680 (5th Cir. 2007); U

nited States v. Green , 324 F.3d 375, 381 (5th Cir. 2003). Our consideration of the district court’s decision b egins and ends w ith the first e lement of plain e rror review because w e conclude that the district court did not err in limiting the scope o f Rios’s cross-examination. See Puckett v. United States , 556 U.S. 1 29, 135 (2009) (explaining that t he first element of p lain error review requires that “there must be an error or defect”). A defendant’s right to cross-examination is not unlimited. U nited States v. Bern e

g ge r , 661 F.3d 232, 238 ( 5 th Cir. 2011). The Sixth Amendment confrontation r ight is s atisfied in thi s r e gard so long as “the jury had sufficient information to appraise the bias and mot i ves of the witness” and to draw inferences about the witness’s reliability. I

d. (citation and quotation m a rks omitted); United States v. McCullough , 6 3 1 F.3d 783, 790 (5th Cir. 2011) (“A defendant’s Confrontation Clause rights are satisfied when defense counsel is p e r m i t t e d t o expose to the jury the fac t s from which t he jurors

. . . could appropriately draw inferences relating to the reliability of the witness.” (citation and internal quotation marks omitted)).

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To this end, w e have previously h eld that a d efendant’s Sixth Amendment confrontation right i s s a t isfied even when the district court limits crossexamination to basic information concerning a witness’s prior convictions. 1 See, e.g. , McCullough , 631 F.3d at 791 (holding no c o nf r o n t a ti on right violation where the district c ourt limite d cross-examination to “ basic information about [the witness’s] convictions” and pro h ib i t ed, inter alia , descriptions o f the witness’s conduct during t he incidents leading to his convict i o n s ( emphasis added)); United States v. Restivo , 8 F.3d 274, 278 (5th Cir. 1993) (holding t hat the district court satisfied the C onfrontation Clause by permitting the d efendant t o present facts concerning t he a dv e r se witness’s plea agreement and incentives to cooperate). In sum, e stablishing a C o n frontation Clause violation requires a defend a n t t o show “that a reasonable jury might have had a significantly different impression of t he witness’ s c r e d i bility if defense counsel had been allowed t o pursue the questi o n i n g
. ” U nited States v. Davis , 393 F.3d 5 40, 548 (5th Cir. 2004). The Defendant s fail to make such a showing. A s in McCullough and Restivo , t he jury h e re had ample evidence to evaluate Rios’s p o tential bias. The district court permitted the Defendants to question Rios c oncerning the fact of his convictions and the name of the offenses, thereby allowing inquiry into the “basic information” related to Rios’s convictions. Rios himself testified that he had pleaded guilty to obtaining money by false p retenses and unauthorized use of a credit card. Further, he told t he jury that h e p l eaded guilty to another “theft

1 The D ef

end ants rely on Uni ted Sta tes v . Estra da d es p ite the f act that the Estra da court rejected an analogous Conf rontation Claus e challenge. 430 F. 3d 606, 621 ( 2d Cir. 2005)

. The Estra d a c ourt held that lim iting the s cop e of ques tioning concerning the advers e w itnes s es ’ p rior convictions to the f act and d ate of their f

elonies , w hile exclud ing the s tatutory nam es of thos e f

elonies , s atis f

ied the Sixth Am end m ent. Id. Estra da theref ore s ugges ts that the d is trict court here—w hich p erm itted t h e D ef end ants to introd uce the nam es of Rios ’s convictions

— d id not have to allow ques tioning into the d etails of Rios ’s convictions

.

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charge” and f

o r p o s s essing a firearm a s a felon. Rios also discussed his cooperation with law enforcement and suggested that his s en t e n c e c ould be reduced based on his testimony. Galaz-Perez’s attorney’s opening and closing s tatements also revealed Rios’s potential b ias. I n his o pening stateme n t , c o u n s el pointed out that Rios had been “ arrested and jailed m a n y times,” that he “knows how to work the system,” and that his “testimony [was] bought” by t he Government. During his closing argument, Galaz-Perez’s attorney reminded th e j u r y that Rios “was convicted of t heft over $ 1,500, was convicted of the unauthorized use of a credit card, was c onvicted o f obtaining money by false pretenses, a nd

. . . was convicted of [being] afelon [in possession] of a firearm.” Finally, the district court’s jury charge r e minded the jurors of Rios ’ s c o n v i c tions and informed t h em t hat such convictions could be used in weighing his credibility. Accordingly, based on the extent of the evidence and argument presented to the jury c oncerning Rios’s credibility, w e conclude that n o Confrontation Clause violation o ccurred and the district court remained “well within [its] discretion” i n limiting t he scope of cross-examination. M cCullough , 631 F.3d at 7 91; see also U n i t e d States v. Skelton , 514 F.3d 433, 438 (5th Cir. 2008) (“If there i s no constitutional violation, then w e review a district court’s limitations on cross-examination f or a n abuse of discretion, w hich requires a showing that the limitations were clearly prejudicial.”). B. The Defendants’ Convictions Rest on Sufficient Evidence We also reject the Defendants’ sufficiency

- o f

- t he-evidence c laims, which focu s p r i m a r i ly on attacking the credibility of Rios and Sanchez-Rios. “We review properly preserved claims that a defendant was convicted on insufficient evid e n c e w ith substantial deference to the jury verdict, asking o nly whether a rational jury could h ave found each essential e l e ment of the offense beyond a reasonabl e d o u b t .” U nited States v. Delgado , 672 F .3d 320, 330 (5th Cir.)(en

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banc)(internal c itation and quotation marks omitted), c e rt. denied , 133 S. Ct. 525 (2012). Importantly, “ [t]he scope of our r e view of the sufficiency of the evidence after conviction by a j u r y is narrow,” U nited States v. Bermea , 30 F.3d 1539, 1551 (5th Cir. 1 994), because determi n i n g “ [t]he weight and credibility of the evidence are the sole province of the jury,” United States v. P a rker , 505 F.3d 323, 331 (5th Cir. 2007). C onsequently, w e assess the credibility of the testimony of Rios and Sanchez-Rios only to the extent that it may be incredible as a matter of law. “Testimony is incredible as a m atter of law o nly if i t relates to facts that the witness could not possibly have observed or t o events which c ould not have occurred under the laws of nature.” Bermea , 30 F.3d at 1552. The Defendants have failed to establish that Rios or Sanchez-Rios’s testimony was “incredible as a m atter of law.” Instead, V a squez-Fernandez asserts t hat these co-conspirators l a cked credibility because they “had every

r e a s o n to l ie” because they agreed to testify a gainst the Defendants with t h e expectation that it would benefit them i n the adjudication of their own c riminal charges. Similarly, Galaz-Perez merely suggest s that Rios l acks credibility as

a witness because he i s “a career criminal with ample incentive to introduce untruthful testimony against” the D e fendants. Accordingly, the Defendants advance credibility a rguments over w hich reasonable m inds can differ and that fall within the province of t he jury. Their sufficiency-of-the-evidence challenges thus must fail. III. CONCLUSION The limitation o f Rios’s cross-examination i n this case does not r un afoul of the Confrontation C lause and lies within the district court’s discretion. The Defendants’ sufficiency-of-the-evidence claims a sk u s t o revisit the jury’s credibility d e t e r m i n ati o n s , wh i c h w e c a n n ot do absent circumstances not present here. Accordingly, we AFFIRM the Defendants’ convictions.

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