     Case: 12-40727       Document: 00512200742         Page: 1     Date Filed: 04/08/2013




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

                                                                            FILED
                                                                            April 8, 2013
                                     No. 12-40727
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

OMAR QUEZADA-ALCALAR,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:11-CR-527-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       A jury convicted Omar Quezada-Alcalar of: conspiracy to possess with
intent to distribute more than five kilograms of cocaine; possession with intent
to distribute more than five kilograms of cocaine; conspiracy to import more than
five kilograms of cocaine; and importing more than five kilograms of cocaine. He
was sentenced, inter alia, to 188 months’ imprisonment. He challenges his
convictions on numerous grounds.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40727     Document: 00512200742      Page: 2   Date Filed: 04/08/2013

                                  No. 12-40727

      For the first time on appeal, Quezada contends he did not intelligently and
voluntarily proceed to trial because the district court erroneously advised him
that, if he proceeded to trial, he would not qualify for the safety-valve reduction
in advisory sentencing Guideline § 5C1.2 (“Limitation on Applicability of
Statutory Minimum Sentences in Certain Cases”). We review only for plain
error. To the extent the court erroneously advised Quezada, he has failed to
establish reversible plain error:     he cannot show any error affected his
substantial rights given his electing to proceed to trial, despite being advised
that he faced a harsher sentence than if he pleaded guilty. Cf. United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004) (defendant seeking reversal where
district court plainly erred under Rule 11 must show reasonable probability he
would not have entered plea but for court’s error).
      For the importation charges, Quezada contends there was insufficient
evidence he imported, and conspired to import, cocaine into the United States
because there was no evidence that he knew the cocaine in the vehicle originated
outside the United States. Given the ties of the persons involved to Mexico and
the proximity of the vehicle to Mexico, a reasonable juror could rationally have
found Quezada knew the vehicle and cocaine contained in it originated in
Mexico. Thus, the evidence was sufficient to sustain Quezada’s convictions for
importing, and conspiring to import, cocaine. See United States v. Ferguson, 211
F.3d 878, 882-83 (5th Cir. 2000) (discussing standard of review for sufficiency
challenges); e.g., United States v. Osgood, 794 F.2d 1087, 1094 (5th Cir. 1986)
(holding evidence sufficient to support conviction for conspiracy to import
cocaine).
      Next, Quezada contends: the Government failed to disclose statements
attributed to him by an agent in violation of Federal Rule of Criminal Procedure
16 (Government must disclose, upon defendant’s request, inter alia, certain
relevant oral statements made by defendant during interrogation); and the court
abused its discretion by denying his motion for a mistrial. Assuming arguendo

                                        2
    Case: 12-40727     Document: 00512200742      Page: 3   Date Filed: 04/08/2013

                                  No. 12-40727

Rule 16 was violated, Quezada has failed to show any abuse of discretion. E.g.,
United States v. Garcia, 567 F.3d 721, 734-35 (5th Cir. 2009) (assuming violation
of Rule 16, no abuse of discretion in admitting photographs where defendant
failed to demonstrate prejudice to his substantial rights). Defense counsel had
the opportunity to impeach the agent on cross-examination regarding the
omission of the statements at issue from the agent’s handwritten notes and
another agent’s written report. Accordingly, Quezada has not demonstrated his
substantial rights were prejudiced by any surprise resulting from the alleged
Rule 16 violation. E.g., United States v. Cuellar, 478 F.3d 282, 294 (5th Cir.
2007) (en banc) (no showing of prejudice to substantial rights where purposes of
Rule 16 not frustrated), rev’d on other grounds, 553 U.S. 550 (2008).
      Quezada contends the court abused its discretion by denying his new-trial
motion based on the Government’s remarks during closing argument. The
Government stated it was limited by our court’s precedent to respond to defense
counsel’s asserting the agents conspired to testify falsely that Quezada
confessed. Quezada’s asserting the remarks were improper is conclusional,
particularly in the light of the specific reasons given by the district court in
ruling the remarks were not improper. See United States v. McCann, 613 F.3d
486, 494 (5th Cir. 2010) (identifying two-step analysis court applies to determine
presence of prosecutorial misconduct).        Although Quezada asserts he was
prejudiced by the remarks because his credibility was a central issue, he does
not address the effect of the cautionary instructions given and the strength of
the other evidence of his guilt. Cf. id. at 496. Accordingly, he has failed to
demonstrate an abuse of discretion. See United States v. Jefferson, 258 F.3d 405,
412 (5th Cir. 2001) (assuming prosecutor’s closing-argument statement was
prejudicial, facts and circumstances of case render error not sufficiently
prejudicial to warrant grant of new trial).
      Quezada contends there was not a sufficient factual basis for the objected-
to deliberate-ignorance jury instruction because the evidence, at most, supported

                                        3
    Case: 12-40727    Document: 00512200742     Page: 4   Date Filed: 04/08/2013

                                 No. 12-40727

an inference of actual awareness. Unlike United States v. Mendoza-Medina, 346
F.3d 121, 133-34 (5th Cir. 2003), Quezada’s admissions support the inference
that he was subjectively aware of a high probability cocaine was in the vehicle.
He has failed to show the court abused its discretion by giving the instruction.
E.g., United States v. Elashyi, 554 F.3d 480, 504 (5th Cir. 2008).
      AFFIRMED.




                                       4
