IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10498
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO VILLEGAS; CRUZ RODRIGUEZ,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Texas
(USDC No. 4:95-CR-171-A)
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August 26, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Francisco Villegas and Cruz Rodriguez appeal their convictions
and sentences for possession with intent to distribute
methamphetamine (Count 1) and for attempted possession with intent
to distribute methamphetamine (Count 2), all in violation of
21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2. They argue that
the evidence was not sufficient to support the jury’s verdict and
that their convictions and sentences for the attempted possession
*
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that this opinion should not be published and is not precedent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.
of methamphetamine violate the double jeopardy clause of the Fifth
Amendment. Villegas argues additionally that the district court
abused its discretion by admitting into evidence three out-of-court
statements over his hearsay objection. We have reviewed the record
and the briefs of the parties and hold that the evidence was
sufficient for a reasonable jury to find Villegas and Rodriguez
guilty beyond a reasonable doubt. See United States v. Bermea,
30 F.3d 1539, 1551 (5th Cir. 1994), cert. denied, 513 U.S. 1156
(1995). We also hold that any error the district court may have
made in admitting the three complained-of statements is harmless in
light of the overwhelming evidence of Villegas’s guilt. See United
States v. Capote-Capote, 946 F.2d 1100, 1105 (5th Cir. 1991).
We also hold that Villegas’s and Rodriguez’s convictions for
the attempt to possess and distribute the same amount of
methamphetamine that they were convicted of possessing with intent
to distribute violate the double jeopardy clause. See United
States v. Anderson, 987 F.2d 251, 254 (5th Cir. 1993).
Accordingly, Villegas’s and Rodriguez’s convictions and sentences
on Count 2 of the indictment are REVERSED. The total amount of the
special assessment for each appellant is reduced by $50.
AFFIRMED IN PART; REVERSED IN PART.
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