                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       November 13, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

 v.                                                        No. 05-2335
                                                        (D. New M exico)
 AD AM AN THO NY GU TIERREZ,                       (D.Ct. No. CR-04-1516 RB)

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Adam Gutierrez appeals from his convictions for possession with intent to

distribute methamphetamine, cocaine and heroin in violation of 21 U.S.C.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
§ 841(a)(1) and (b)(1)(C). He was sentenced to 240 months imprisonment on

each count, with the sentences to be served concurrently. On appeal, Gutierrez

contends a single reference by one witness to having met him “in jail” constitutes

plain error necessitating reversal of his conviction. W e disagree and affirm.

      On the morning of A ugust 4, 2002, Officer David Hathcox of the H obbs,

New M exico, police department saw Gutierrez get in the back seat of a gray cab

carrying a small black plastic bag. A warrant check informed Hathcox there was

an active warrant for Gutierrez’s arrest. By that time, Hathcox had lost sight of

the cab so he radioed an alert to local police units. A short time later, Officers

Brandon W alker and Kyle W ilkison stopped the cab. Hathcox arrived

immediately thereafter. Gutierrez was arrested; $2,691.71 in cash was found on

his person.

      Hathcox searched the cab but did not find the black plastic bag he had seen

Gutierrez carrying. Gutierrez was taken to jail, where he made a series of phone

calls, one of which was to a friend, Sarah Cortez. Gutierrez asked Cortez to go to

the cab company to pay his fare because he had just been arrested (although in

fact he paid the fare prior to being arrested). W hen Cortez asked why she should

do so, Gutierrez said “Usa tu cabeza,” which translates to “use your head.” (R.

Vol. V at 110-11.) Cortez did not go to the cab company.

      Later that morning, Luis A lmaguer went to his sister’s house to talk with

Julie M artinez, Sarah Cortez’s daughter. He, M artinez and a man named Felipe

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then drove to the cab company to look for some car keys lost in one of the cabs.

Despite a search that practically tore the cab apart — in fact, the owner took the

rear seat out of the cab to facilitate the search — they did not find any car keys.

Unbeknownst to the three individuals, they were searching the wrong cab; the

gray cab in which Gutierrez had ridden was still in service. The gray cab returned

around 1:00 p.m. Kenneth Sanders, the driver, was asked to search the cab for the

lost keys. W hen Sanders looked underneath the front passenger side seat, he

found a black bag tucked up inside the springs. The bag was found directly in

front of where Gutierrez had been sitting. Sanders took the bag to another

employee, who opened it and, seeing what he thought might be contraband inside

the bag, called the police. Officers arrived and took custody of the bag. The

drugs were later identified as 14.68 grams of methamphetamine, 23.27 grams of

cocaine and 26.39 grams of heroin. A small digital scale was also found inside

the bag.

      Gutierrez was indicted on August 5, 2004, with three counts of possession

with intent to distribute controlled substances. He proceeded to trial on M ay 18,

2005. On the second day of the trial, Almaguer was the final witness for the

prosecution. Almaguer was a convicted felon, then incarcerated on two state

misdemeanor charges, and was testifying in exchange for the government’s

agreement to write a letter to state officials on his behalf. Almaguer testified

about going to his sister’s house on the morning of August 4, 2002, to talk with

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M artinez. He testified he rode to the cab company with M artinez and Felipe and

was promised $20 or drugs if he w ould look for some car keys.

      After Almaguer testified about the search of the cab, the prosecutor asked

whether he knew Gutierrez:

      Q.     Have you ever met Adam G utierrez?
      A.     Yes.
      Q.     You have met him?
      A.     Yes.
      Q.     Had you met him - - did you know him on that day? D id you
             know who he was on that day, actually met him on that day or
             before?
      A.     I met him before.
      Q.     Oh, so you do know who he is?
      A.     I met him before in jail.
      Q.     Do you have any animosity toward him?
      A.     No.
      Q.     Anger? N othing?
      A.     I really don’t know him like that. I just seen his face; know his
             name.

(R . Vol. IV at 198-99.)

      The defense did not object during this colloquy. On appeal, however,

Gutierrez contends this single statement, “I met him before in jail,” so prejudiced

him that it necessitates reversal of his conviction.

      W e review an issue raised for the first time on appeal for plain error. F ED .

R. C RIM . P. 52(b). “Plain error occurs when there is (1) error, (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v.

Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.), cert. denied, 126 S.Ct. 495

                                          -4-
(2005). Assuming any error was plain, we conclude Gutierrez has not established

such error affected his substantial rights, nor has he met the fourth prong of the

test, demonstrating that any error “seriously affect[ed] the fairness, integrity, or

public reputation of judicial proceedings.” Id.

      In United States v. Corchado, we examined whether the prosecutor’s cross-

examination of the defendant concerning his prior criminal convictions

constituted plain error. 427 F.3d 815 (10th Cir. 2005), cert. denied, 126 S.Ct.

1811 (2006). W e noted the burden on the defendant to demonstrate the error

“‘affected the outcome of the district court proceedings.’” Id. at 818 (quoting

Gonzalez-H uerta, 403 F.3d at 732). “To meet this burden, [a defendant] must

show ‘a reasonable probability that, but for the error claimed, the result of the

proceeding would have been different.’” Id. (quoting United States v.

Dominguez Benitez, 542 U.S. 74 (2004)). W e concluded, in light of the evidence

presented at trial, the defendant had not shown a “reasonable probability” the

outcome of his trial would have been different had evidence of his prior

convictions not been elicited. Id. at 819; see also United States v. Veteto, 701

F.2d 136, 139 (11th Cir. 1983) (“W hile use of such words as ‘jail,’ ‘prison,’

‘arrest’ are, generally to be avoided, where irrelevant, the mere utterance of the

word does not, without regard to context or circumstances, constitute reversible

error per se.”)

      W hile Gutierrez argues strenuously about all the dire consequences that

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could have flowed from this single statement consisting of only six words, his

argument falls far short of demonstrating a “reasonable probability that, but for

the error claimed, the result of the proceeding would have been different.”

Corchado, 427 F.3d at 818. The evidence against Gutierrez was overwhelming,

and a single misstatement in the course of a two-day trial could not have swayed

the jury. See United States v. Walton, 552 F.2d 1354, 1366 (10th Cir. 1977) (In

view of strong evidence of guilt in the record, the mere reference to jail “could

not have had any appreciable effect on the action of the jury and did not affect

any substantial right of the accused”).

      N or does G utierrez persuade us a miscarriage of justice will occur if we

decline to recognize any error that occurred. Gutierrez has not demonstrated the

error “seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” Gonzalez-Huerta, 403 F.3d at 732. Gutierrez has not satisfied the

plain error test. A FFIR ME D.

                                          Entered by the C ourt:

                                          Terrence L. O ’Brien
                                          United States Circuit Judge




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