     Case: 10-50605     Document: 00511645964         Page: 1     Date Filed: 10/26/2011




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

                                                                            FILED
                                                                         October 26, 2011

                                       No. 10-50605                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

MANUEL CHAVEZ-BETANCOURT; FERNANDO ONTIVEROS-
ARAMBULA, also known as Fernando Arambula, also known as El Fer, also
known as Fer,

                                                  Defendants - Appellants



                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:08-CR-2985-1


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Manuel Chavez-Betancourt and Fernando Ontiveros-Arambula appeal
their convictions in the United States District Court for the Western District of
Texas.      On appeal, Appellant Chavez-Betancourt argues that (1) federal
government agents violated his Fourth Amendment rights by stopping him and
searching his vehicle without reasonable suspicion, (2) the district court erred


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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in attributing over 1,000 kilograms of marijuana to him during sentencing, and
(3) the district court erred during sentencing by improperly relying on the PSR
and failing to make specific, required findings concerning the extent of his
participation in the drug conspiracy. Appellant Ontiveros-Arambula asserts
that (1) the district court erred in overruling his objections to the prosecutor's
alleged comments on his failure to testify and further erred by failing to give the
jury a curative instruction on the privilege in violation of his Fifth Amendment
rights, (2) the district court erred in denying his motion for a mistrial based on
a witness's reference to evidence as a “jail call,” (3) the district court erred in
denying his motion for a mistrial based on outrageous government conduct, and
(4) he was denied his right to a fair trial based on the cumulative error doctrine.
For the reasons that follow, we AFFIRM the judgment of the district court.
                                        I.
      Fernando Ontiveros-Arambula is a lieutenant in the Sinaloa Cartel, one
of the largest drug cartels in Mexico. Between 1998 and 2008, local, state, and
federal authorities conducted an investigation of Ontiveros- Arambula's
involvement with both the Sinaloa and Juarez drug cartels. These cartels, with
Ontiveros-Arambula’s significant contribution, smuggled thousands of kilograms
of contraband drugs into the United States, transported millions of dollars in
drug money across the Mexican border, bribed law enforcement officials, bought
weapons, hired hit men to eliminate the enemies of the cartel, and supported a
drug war against rival cartels in Mexico.
      On September 26, 2008, United States Border Enforcement Security Task
force agents received an anonymous tip that there was criminal activity
occurring in the area of Alameda and Carolina streets in El Paso, Texas. A
border patrol agent conducted surveillance of the area and observed Manuel
Chavez-Betancourt, a low-level, but known, operative in the Sinaloa cartel,
sitting against the wall of a gas station and talking on a phone. The agent

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                                  No. 10-50605

parked in the restaurant parking lot across the street from the gas station and
watched the appellant for approximately thirty minutes, during which time more
federal agents arrived at the restaurant to monitor Chavez-Betancourt. Then
another operative for the cartel arrived, and the two men switched car keys.
Chavez-Betancourt got into the passenger side of a Chevy pick-up truck, and his
co-conspirator entered a Saturn sedan. A team of agents approached the truck
where Chavez-Betancourt was sitting. Chavez-Betancourt gave verbal consent
to search the truck, and agents found a black bag containing 13.65 kilograms of
marijuana. After Chavez-Betancourt was given his Miranda warnings, he
admitted that he was driving a vehicle involved in a drug trafficking transaction.
      As a result of the ten-year investigation of Ontiveros-Arambula,
subsequent searches, and the transaction involving the search of Chavez-
Betancourt’s truck, Chavez-Betancourt was found guilty of conspiracy to possess
with the intent to distribute 1,000 kilograms or more of marijuana. Ontiveros-
Arambula was convicted of conspiracy to possess with the intent to distribute
1,000 kilograms or more of marijuana, conspiracy to import 1,000 kilograms or
more of marijuana into the United States from Mexico, and possession of more
than 100 kilograms of marijuana with the intent to distribute. The Appellants
timely appealed their convictions.
                                       II.
      The first issue Chavez-Betancourt raises on appeal is whether Federal
Agents violated his Fourth Amendment rights by approaching him without
reasonable suspicion. This issue is waived, because the appellant failed to raise
the issue during a suppression hearing or at trial. United States v.
Chavez-Valencia, 116 F.3d 127,130 (5th Cir. 1997). Even if this Court were to
consider his Fourth Amendment claims under a plain error analysis, Chavez-
Betancourt has failed to establish that his Fourth Amendment rights have been
transgressed. Law enforcement officers do not violate the Fourth Amendment

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by merely approaching an individual on the street or in another public place.
United States v. Carreon-Palacio, 267 F.3d 381, 388 (5th Cir. 2001) (citing
Florida v. Royer, 460 U.S. 491, 495 (1983)). The encounter between Chavez-
Betancourt and the ICE agents was a consensual encounter that does not
implicate the Fourth Amendment; it was not a temporary seizure which would
implicate the Fourth Amendment.
      With respect to the sentencing issues raised by Chavez-Betancourt, we
find no error in Chavez-Betancourt’s sentencing. He was sentenced to ten years
of imprisonment – the mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(vii) –
for his involvement with a conspiracy to possess with the intent to distribute
1,000 kilograms or more of marijuana.. When an applicable statutory minimum
sentence is greater than the high end of the guideline range, that minimum –
not the otherwise applicable guideline range – is the starting point for
sentencing. See U.S.S.G. § 5G1.1(b) (2009). Furthermore, the trial court is not
required to make specific findings to justify the sentence if “the matter [raised
by the defendant] will not affect sentencing” or if “the court will not consider the
matter in sentencing.” FED. R. CRIM. P 32(i)(3)(B). Thus, because he was
sentenced to the mandatory minimum sentence and the district court did not err
in failing to make any independent, factual findings to support the imposition
of this sentence, the district court committed no error when imposing Chavez-
Betancourt’s sentence.
                                        III.
      We now turn to the appeal of Ontiveros-Arambula. First he argues that
the prosecutor impermissibly violated his Fifth Amendment rights during
closing arguments. The prosecutor’s statements at issue are, first:
            He [Ontiveros-Arambula] can't deny the relationship that he
      had to Mr. Esparza. He may hate the testimony that ties him to
      Mayito and the other people that are involved in this Sinaloa cartel
      with him, but he can't deny that it exists and he can't deny that he

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      had contact with him and he can't deny that the truck that the man
      paid for the load of the 217 pounds on September 26th turns up in
      his own wife's name. And he hasn't even said one thing about it.
And second:
             Government's exhibit 48 is a title to the property at 12345
      Gage. Can't deny that property was transferred from Gabino Salas,
      one of the - the guy who runs the Valley of Juarez to Defendant's
      wife, Yvonne Carbajal. It's indisputable. He can't deny the
      relationship with . . . .
      The Fifth Amendment protects a defendant from the Government
“comment[ing] . . . on the accused's silence.” Griffin v. California, 380 U.S. 609,
615 (1965). Ontiveros-Arambula challenges two distinct statements that he
argues are prohibited comments: the statements starting with "He can't deny;"
and the statement, "And he hasn't even said one thing about it." The district
court ruled that the statements were not violations; and, placed in proper
context, we agree.
      To reverse for improper comment by the prosecutor, the Court must find
one of two things: that “the prosecutor's manifest intention was to comment
upon the accused's failure to testify” or that the remark was “of such a character
that the jury would naturally and necessarily take it to be a comment on the
failure of the accused to testify.” United States v. Bright, 630 F.2d 804, 825 (5th
Cir. 1980) (quoting United States v. Rochan, 563 F.2d 1246, 1249 (5th Cir.
1977)). The Court, however, draws a distinction between a comment concerning
“the failure of the defense, as opposed to the defendant, to counter or explain the
evidence.” Id. at 825.    Our reading of the relevant record convinces us that,
after viewing these comments in the context of the trial as a whole, the
prosecutor was commenting on the defense’s inability to contradict evidence
presented at trial and that the jury would have understood the comments in
their natural context.      Thus, we hold that Ontiveros-Arambula’s Fifth
Amendment rights were not violated by the prosecutor’s closing argument.

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      The second issue that Ontiveros-Arambula raises is that the district court
erred in denying his motion for a mistrial based on a witness’s reference to
evidence as a “jail call.” This Court has held, “If the motion for mistrial involves
the presentation of prejudicial testimony before a jury, a new trial is required
only if there is a significant possibility that the prejudicial evidence had a
substantial impact upon the jury verdict, viewed in light of the entire record.”
United States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998). Although the reference
to a “jail call” was unfortunate, we find that it did not impact the fairness of the
appellant’s trial.
      Next, Ontiveros-Arambula contends that he was entitled to a mistrial
based on outrageous government conduct related to the Government’s handling
of a chain of custody receipt. The standard that the Court employs to determine
whether such conduct constitutes a due process violation is whether the
Government’s conduct “shock[s] . . . the universal sense of justice.” United States
v. Mauskar, 557 F.3d 219, 232 (5th Cir. 2009) (internal quotation marks and
citation omitted). Thus, this legal claim is only available in the rarest of
circumstances. United States v. Allibhai, 939 F.2d 244, 248 (5th Cir. 1991). The
subject custody receipt, however, was not admitted into evidence; nor was there
any evidence that the Government fabricated the receipt – only the appellant’s
speculative assertions. Thus, we reject any argument that the Government
engaged in “outrageous conduct” during Ontiveros-Arambula’s trial.
      Finally, because there were no errors committed during the trial,
Ontiveros-Arambula is clearly not entitled to a new trial based on the
cumulative error doctrine.
      Accordingly, the judgment of the district court is AFFIRMED.




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