Case: 09-40571     Document: 00511084608          Page: 1    Date Filed: 04/19/2010




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

                                                  FILED
                                                                            April 19, 2010
                                     No. 09-40571
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAVIER CONTRERAS,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:08-CR-257-1


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Javier Contreras was convicted by a jury of conspiracy to possess with
intent to distribute marijuana and was sentenced to 262 months of
imprisonment and six years of supervised release. Contreras argues that the
district court abused its discretion in admitting evidence of his prior conviction
in violation of Federal Rules of Evidence 401, 403, and 404(b). He does not
dispute that the evidence of his prior conviction is relevant to an issue other
than character, and he concedes that this first prong of United States v.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40571    Document: 00511084608 Page: 2       Date Filed: 04/19/2010
                                 No. 09-40571

Beechum, 

, 911 (5th Cir. 1978) (en banc) is satisfied. He argues that
the requirements of Rule 403 are not satisfied because the prejudicial effect of
the evidence substantially outweighs its probative value. He also argues that
the age of the conviction, 10 years, weakens its probative value. He also argues
that the Government failed to present evidence that his prior conviction and the
current offense were similar.
      Contreras’s plea of not guilty to the charge of conspiracy placed his intent
at issue for purposes of Rule 404(b). See United States v. Roberts, 

,
382-83 (5th Cir. 1980). The evidence of the prior conviction was probative of his
intent.    Contrary to Contreras’s arguments, the Government did introduce
evidence of similarity between the two offenses in terms of the drug, marijuana,
the quantity of marijuana, and the fact that he involved family members. The
similarity of the offenses was highly probative on the issue of his intent. The
district court did not abuse its discretion in concluding that the evidence
retained probative value despite the age of the conviction. See United States v.
Gonzalez, 

, 760 (5th Cir. 2003) (holding that admission of 1988
conviction to prove knowledge of drugs in 2001 offense was not an abuse of
discretion, and noting cases in which 15- and 18-year-old convictions were
admitted without an abuse of discretion).
      The district court gave instructions to the jury on the limited purpose for
which it could use the evidence of Contreras’s prior conviction. This mitigated
the potential prejudicial effect of the evidence. See 

n.2. The district court did not abuse its discretion in admitting this evidence.
      Contreras argues that the evidence was insufficient to support his
conviction. He argues that the only evidence was the testimony of two DEA
agents who testified about what he had told them. He states that there was no
recording or written record of his statements and that there was no evidence
that he waived his rights under Miranda v. Arizona, 

(1966), in
writing.

                                        2
   Case: 09-40571    Document: 00511084608 Page: 3        Date Filed: 04/19/2010
                                 No. 09-40571

      The issue of sufficiency is preserved for appellate review. See United
States v. DeLeon, 

, 596 n.1 (5th Cir. 2001). This court will uphold
the jury’s verdict if a reasonable trier of fact could conclude from the evidence
that the elements of the offense were established beyond a reasonable doubt.
Jackson v. Virginia, 

, 319 (1979). A review of the sufficiency of the
evidence does not include a review of the weight of the evidence, since such
determinations are within the jury’s sole province. United States v. Myers, 

, 78-79 (5th Cir. 1997).
      Contreras cites no authority for the proposition that a confession must be
written or recorded to be sufficient to support a conviction. The jury was entitled
to determine the credibility of and the weight to be given to the agents’
testimony about his confessions. He does not make any argument that the
substance of his confessions, along with the other evidence, was insufficient to
prove his intentional participation in a drug conspiracy.
      Contreras’s argument about the lack of a written waiver of his Miranda
rights concerns the admissibility of his confessions and not sufficiency to support
the conviction, and he has not challenged the admissibility of his confessions.
      AFFIRMED.




                                        3