IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50070

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

April 5, 2011

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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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

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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.

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