     Case: 11-50813       Document: 00512053069         Page: 1     Date Filed: 11/14/2012




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

                                                                            FILED
                                                                        November 14, 2012
                                     No. 11-50813
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAIME FLORES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:11-CR-106-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       A jury found Jaime Flores guilty of conspiracy to distribute and to possess
with intent to distribute heroin, and the district court sentenced him to 72
months in prison, to be followed by a three-year term of supervised release. On
appeal, Flores contends that the district court erred in its presentation of the
jury instructions. As he concedes, he did not object to the instructions, so we
review for plain error. See United States v. Bohuchot, 625 F.3d 892, 897 (5th Cir.
2010); United States v. Betancourt, 586 F.3d 303, 305-06 (5th Cir. 2009). Flores

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50813     Document: 00512053069      Page: 2   Date Filed: 11/14/2012

                                  No. 11-50813

thus must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, we have the discretion to correct the error but will do so
only if it affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      In his first ground for relief, Flores contends that the district court
constructively amended the indictment by failing to limit the jury’s consideration
to the three defendants named in the indictment, which permitted the jurors to
consider the possible participation of other individuals in the conspiracy. He has
not established a clear or obvious error arising from the court’s conspiracy
instructions. See United States v. Leahy, 82 F.3d 624, 630-31 (5th Cir. 1996).
Although Flores also asserts that the jury should have been instructed about the
possibility of multiple conspiracies, he has not established that the district
court’s failure to give such an instruction affected his substantial rights.
See Puckett, 556 U.S. at 135; United States v. Morris, 46 F.3d 410, 417 (5th Cir.
1995).
      Flores asserts that the district court should have instructed the jury about
expert witnesses and should have warned the jury that Detective Mitch Russell
was testifying in a dual role as a lay and an expert witness. Russell’s testimony
about conclusions reached from “common sense or . . . past experience formed
from firsthand observation” does not rise to the level of expert testimony. United
States v. Ebron, 683 F.3d 105, 138 (5th Cir. 2012) (internal quotation marks and
citation omitted). Flores’s citations to case law in other circuits indicating that
Russell was testifying as an expert are insufficient to overrule this court’s
authority. See United States v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010).
Because Russell was not testifying as an expert, the district court did not err in
failing to instruct the jury on expert evidence or on a witness’s dual role.
      In his final ground for relief, Flores asserts that the jury instructions as
a whole constituted a cumulative plain error. He has not shown that there exist

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                                   No. 11-50813

errors to be cumulated, and thus he is not entitled to relief. See United States
v. Brooks, 681 F.3d 678, 705 (5th Cir. 2012), petition for cert. filed (Aug. 9, 2012)
(No. 12-5812), and petition for cert. filed (Aug. 16, 2012) (No. 12-5847). Because
Flores has not shown reversible error, the judgment of the district court is
AFFIRMED.




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