United States v. Holguin

Case: 23-50642            Document: 61-1         Page: 1      Date Filed: 10/30/2024




           United States Court of Appeals
                for the Fifth Circuit
                                   ____________                                    United States Court of Appeals
                                                                                            Fifth Circuit


                                    No. 23-50642
                                                                                          FILED
                                                                                   October 30, 2024
                                  Summary Calendar
                                  ____________                                       Lyle W. Cayce
                                                                                          Clerk
United States of America,

                                                                    Plaintiff—Appellee,

                                          versus

Salvador Holguin,

                                            Defendant—Appellant.
                   ______________________________

                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 7:22-CR-275-2
                   ______________________________

Before Graves, Willett, and Wilson, Circuit Judges.
Per Curiam: *
       Salvador Holguin appeals his jury trial conviction for possession with
intent to distribute methamphetamine. 21 U.S.C. § 841(a)(1), (b)(1)(C). He
argues that the district court admitted testimonial hearsay in violation of the
Federal Rules of Evidence and his rights under the Confrontation Clause, and
that the Government committed misconduct by arguing in closing that the

       _____________________
       *
           This opinion is not designated for publication. See 5th Cir. R. 47.5.
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                                  No. 23-50642


jury should consider that testimonial hearsay for the truth of the matter
asserted. Neither argument has merit, so we AFFIRM.
       The Federal Rules of Evidence ban hearsay: out-of-court statements
made to prove the truth of what’s asserted. Fed. R. Evid. 801(c). Similarly,
the Confrontation Clause prohibits admitting out-of-court statements as
evidence against defendants in a criminal case unless they can cross-examine
the declarant. Crawford v. Washington, 541 U.S. 36, 51–53 (2004). But that
prohibition applies only if the statements are “testimonial.” Id. A statement
is “testimonial” if its primary purpose . . . is to establish or prove past events
potentially relevant to later criminal prosecution.” Davis v. Washington, 547
U.S. 813, 822 (2006). And as with the federal rules, the Confrontation Clause
“does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.” United States v. Kizzee, 877
F.3d 650, 656 (5th Cir. 2017).
       We review a district court’s decision to admit or exclude evidence for
an abuse of discretion and any error in admitting evidence is subject to
harmless-error review. United States v. Hankton, 51 F.4th 578, 601 (5th Cir.
2022). We review preserved Confrontation Clause errors de novo, subject to
harmless-error analysis, Kizzee, 877 F.3d at 656, but Confrontation Clause
errors that have not been preserved are reviewed for plain error, United States
v. Acosta, 475 F.3d 677, 680 (5th Cir. 2007). It is not immediately clear from
the record whether Holguin preserved a Confrontation Clause challenge, but
we need not decide which level of review applies because Holguin’s
arguments fail under any standard. See United States v. Rodriguez, 523 F.3d
519, 525 (5th Cir. 2008).
       Although Holguin fails to identify with specificity which statement he
claims is testimonial hearsay, he objects to the statements “from unknown
alleged conspirators.” Only one text message from an unknown sender was




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                                 No. 23-50642


admitted over objection. That message read: “Your good I’m in town rn
trying to make something happen. You think you can throw me something I
got $60 rn.” Holguin responded to that message as follows: “I mean I went
got some today just got local.” The district court did not err in admitting the
unknown sender’s message for several reasons.
       First, this incoming text message facilitating the purchase of drugs is
not “testimonial” under the Confrontation Clause because there is nothing
to suggest that the primary purpose of that message was to be used in a
criminal prosecution to establish or prove past events. See United States v.
Ivory, 783 F. App’x 325, 328 (5th Cir. 2019); Crawford, 541 U.S. at 51.
Second, the statement was not offered for the truth of the matter asserted.
Holguin was convicted of possession with intent to distribute, which requires
only that he intended to distribute the drugs, not that he actually distributed
anything. United States v. Cabello, 33 F.4th 281, 284 (5th Cir. 2022). As such,
whether the unknown sender was truthfully in town “trying to make
something happen” or had $60 is irrelevant. The relevance of the text
message is the effect it had on Holguin in believing that he was engaging in a
drug sale. United States v. Reed, 908 F.3d 102, 120 (5th Cir. 2018)
(“Ordinarily, a statement is not hearsay if it is offered to prove the
statement’s effect on the listener.”). Finally, even if the statement is
considered hearsay, it was admissible to provide context for Holguin’s
response, which was properly admitted as an admission of a party opponent.
See Fed. R. Evid. 801(d)(2)(A); United States v. Robinson, 87 F.4th 658,
673 (5th Cir. 2023). As we explained in Robinson, “when a defendant’s
recorded statements are admissible as a party opponent admission under
Rule 801(d)(2)(A), an interlocutor’s statements, even if considered hearsay,
are admissible to put [the defendant’s] statements into context.” Id. (internal
quotation marks and citation omitted). And here, unlike in Robinson, the
district court gave the jury a limiting instruction that it could consider this




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statement for the limited purpose of providing context for the text messages
attributable to Holguin, not for the truth of the matter. For all these reasons,
the district court did not violate the hearsay rules, nor the Confrontation
Clause, in admitting the unknown sender’s statement.
       Holguin also argues that the Government inappropriately argued in
closing that the jury could consider the unknown sender’s statement for the
truth of the matter asserted. Holguin failed to object to the Government’s
comments about the statement during trial and concedes that this challenge
is reviewable for plain error only. United States v. Mares, 402 F.3d 511, 515
(5th Cir. 2005).
       To prevail on this issue, Holguin must show that the error affected his
substantial rights. See United States v. Olano, 507 U.S. 725, 734–35 (1993)
(noting it is the defendant’s burden to show the error was prejudicial). To do
so, he must show the error affected the outcome of the district court
proceedings, id. at 734, and the “determinative question is whether the
prosecutor’s remarks cast serious doubt on the correctness of the jury’s
verdict,” United States v. Smith, 814 F.3d 268, 276 (5th Cir. 2016) (internal
quotation marks and citation omitted). To make this determination, this
court considers “(1) the magnitude of the prejudicial effect of the
prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the
judge, and (3) the strength of the evidence supporting the conviction.” Id.
(internal quotation marks and citation omitted).
       Even assuming Holguin is right that the Government’s comments
during closing were improper, he has not met his burden of showing that this
error affected his substantial rights. To begin, the prejudicial effect of the
Government’s comment was likely small given the limiting instruction the
district court gave the jury. In addition, the Government provided ample
evidence to support a conviction without relying on its comment about the




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text message. A witness testified that Holguin invited her to go with him
while he completed a methamphetamine transaction on December 6, 2022.
Also, officers located more than 60 grams of methamphetamine and
paraphernalia consistent with drug trafficking, including baggies of various
sizes and a scale, in his residence. See United States v. Resio-Trejo, 45 F.3d
907, 911 (5th Cir. 1995) (“Possession may be actual or constructive, and the
intent to distribute may be inferred from the quantity and value of the
[controlled   substance]    possessed.”).       Furthermore,   “because    the
Government used an “on or about” designation in the indictment, it was not
required to prove the exact date of Holguin’s offenses. See United States v.
Valdez, 453 F.3d 252, 260 (5th Cir. 2006). And although Holguin claimed
that he had no intention of selling methamphetamine on December 6, 2022,
he admitted to possessing and distributing drugs from August 2022 until at
least December 2022, and he signed a letter apologizing for selling
methamphetamine. Accordingly, Holguin cannot show his substantial rights
were affected. See United States v. Aguilar, 645 F.3d 319, 323 (5th Cir. 2011).
       The judgment of the district court is AFFIRMED.




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