     Case: 12-50288       Document: 00512101071         Page: 1     Date Filed: 01/04/2013




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

                                                                            FILED
                                                                          January 4, 2013
                                     No. 12-50288
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ERNEST ANTHONY MONTOYA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:11-CR-333-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       A jury convicted Ernest Anthony Montoya of aiding and abetting the
possession with intent to distribute 100 kilograms or more, but less than 1,000
kilograms, of marijuana. The district court sentenced Montoya to 63 months of
imprisonment. Montoya argues that his conviction should be reversed because
the prosecutor’s rebuttal argument improperly bolstered the credibility of two
cooperating witnesses. He concedes that review of this claim is for plain error.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50288     Document: 00512101071     Page: 2   Date Filed: 01/04/2013

                                  No. 12-50288

      To show plain error, the appellant must show a forfeited error that is clear
or obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If the appellant makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      Even assuming that the prosecutor’s remarks constituted obvious error,
Montoya has not shown that they had the “probable effect” of preventing the jury
from “judg[ing] the evidence fairly.” United States v. Young, 470 U.S. 1, 12
(1985).   The evidence against Montoya was “substantial and virtually
uncontradicted,” id. at 20, and Montoya points to no reason why the jury should
not be presumed to have heeded the district court’s instructions that remarks of
counsel are not evidence. See United States v. Gallardo-Trapero, 185 F.3d 307,
321 (5th Cir. 1999).
      AFFIRMED.




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