     Case: 13-50513      Document: 00512799567         Page: 1    Date Filed: 10/10/2014




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


                                      No. 13-50513                               FILED
                                                                          October 10, 2014
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

                                                 Plaintiff-Appellee

v.

ALBERT ADAM NAVARRO, also known as Alberto Navarro, also known as
Albert A. Navarro,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 5:12-CR-188-1


Before JOLLY, HIGGINBOTHAM and OWEN, Circuit Judges.
PER CURIAM: *
       Albert Adam Navarro appeals his conviction following a jury trial of
possession of a firearm by a convicted felon.             We review for an abuse of
discretion the district court’s refusal to instruct the jury on the affirmative
defense of justification. See United States v. Branch, 91 F.3d 699, 711 (5th Cir.
1996). In the light of the evidence adduced at trial that Navarro possessed the
rifle at issue when there was no imminent or impending threat, that he had


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50513     Document: 00512799567     Page: 2   Date Filed: 10/10/2014


                                  No. 13-50513

recklessly or negligently placed himself in the situation which he claimed
necessitated possession of the rifle, and that he could have continued relying
on police protection as a reasonable legal alternative to violating the law, the
district court did not abuse its discretion by denying the instruction. Id.; see
United States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998).
      With regard to Navarro’s arguments that two comments made by the
prosecutor during closing arguments warranted a mistrial, we apply a two-step
test on review. United States v. McCann, 613 F.3d 486, 494 (5th Cir. 2010).
First, we review de novo whether the remarks were improper. See id. If either
of the comments was improper, we review under the abuse of discretion
standard whether the impropriety affected Navarro’s substantial rights such
that his motion for a mistrial should have been granted. See id. Even if both
comments were improper, Navarro has failed to show that the district court
abused its discretion in the light of both the cautionary instruction given to the
jury and the evidence of Navarro’s guilt adduced at trial. See id. at 496-97.
                                                                    AFFIRMED.




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