* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 7, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40943

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUILLERMO GALVAN,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:04-CR-82-1

--------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Guillermo Galvan appeals his conviction by jury for

possession of six grams of cocaine and 79 grams of marijuana with

the intent to distribute, in violation of 21 U.S.C. § 841(a)(1),

and resulting 262-month sentence. His argument that the evidence

was insufficient to support his conviction fails under any

standard given that he confessed several times that he was

bringing the drugs to a fellow gang member named Flaco. Galvan’s

argument that he was convicted solely on his own uncorroborated
No. 04-40943

-2-

confession is unpersuasive because the Government presented

evidence fortifying the truth of Galvan’s statements, including

evidence that the drugs’ packaging had not been disturbed (which

would otherwise indicate personal use); Sloss’s testimony

confirming that she had received money from Flaco the day before

she and Galvan left Mission, Texas, and that Flaco was a friend

of hers and Galvan’s; and by Ortegon’s testimony that Galvan was

a member of the Almighty Latin Kings gang. See United States v.

DeVille, 278 F.3d 500, 506-07 (5th Cir. 2002).

Galvan next urges that the district court reversibly erred

in refusing to give a requested jury instruction to the effect

that the quantity of drugs involved could be consistent with

personal use and did not give rise to an inference of intent to

distribute. The argument fails because the substance of the

requested jury instruction was in fact included in the court’s

charge, which instructed the jury that it could find the

defendant guilty of the lesser included offense of mere

possession. See United States v. Morales, 272 F.3d 284, 289 (5th

Cir. 2001). The claim fails for the additional reason that

Galvan’s defense was not impaired by the lack of the instruction

given that he was able to argue that the drugs could have been

for his personal use and presented evidence to that effect. Id.

Galvan next urges that the district court abused its

discretion in admitting evidence of his gang membership,

including a photograph of him showing a gang tattoo, asserting
No. 04-40943

-3-

that the evidence was at best only marginally relevant but that

its prejudicial effect outweighed any probative value and thus

should have been excluded under FED. R. EVID. 403. 

Even assuming, without deciding, that the district court

abused its discretion in admitting the challenged evidence, the

error is harmless given the other substantial evidence of

Galvan’s guilt, including his multiple confessions. See United

States v. Haese, 162 F.3d 359, 364 (5th Cir. 1998); United States

v. Rodriguez, 43 F.3d 117, 123 (5th Cir. 1995). Galvan has not

demonstrated any reversible error in connection with his

conviction, and his conviction is AFFIRMED.

Regarding the sentence imposed, Galvan renews the argument,

preserved in the district court, that his constitutional rights

were violated when the district court sentenced him as a career

offender under U.S.S.G. § 4B1.1 based on facts regarding his

prior convictions which were neither pleaded in the indictment

nor proved beyond a reasonable doubt, citing Blakely v.

Washington, 124 S. Ct. 2531 (2004) and United States v. Booker,

125 S. Ct. 738, 756 (2005). He further contends that the careeroffender adjustment was error because one his prior conviction

for burglary of a habitation was not a “crime of violence.” 

These claims fail because a sentencing judge’s determination of

career-offender status, including whether a prior conviction is a

“crime of violence,” does not implicate Booker. United States v.
No. 04-40943

-4-

Guevara, ___ F.3d ___, No. 03-11299, 2005 WL 1009772, *6 (5th

Cir. May 2, 2005). 

Galvan also urges that the district court erred in

concluding that it lacked the authority under the guidelines to

depart downwardly. Even if it is assumed that Galvan did not

preserve the objection adequately in the district court, the

district court plainly erred in imposing Galvan’s sentence under

a mandatory guidelines scheme. See United States v. ValenzuelaQuevedo, __ F.3d __, No. 03-41754, 2005 WL 941353 at *4 (5th Cir.

Apr. 25, 2005). The error affected his substantial rights

because it appears from the district court’s comments at

sentencing that it would have imposed a lighter sentence under an

advisory guidelines scheme. See, e.g., United States v. Pennell,

 F.3d , No. 03-50926, 2005 WL 1030123 at *5 (5th Cir. May

4, 2005). Consequently, Galvan’s sentence is VACATED, and the

case is REMANDED for resentencing.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR

RESENTENCING.