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

                                                                            FILED
                                                                         January 28, 2009
                                     No. 08-10183
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

PATRICK DEAN COOK

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 3:07-CR-52-ALL


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Patrick Dean Cook appeals his jury conviction for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He argues that the
district court abused its discretion in denying his motion for a mistrial based on
improper comments by two witnesses concerning his criminal history of drug
offenses and pending sexual assault charges. If improper evidence is introduced
to the jury, and the district court denies the defendant’s subsequent motion for
mistrial, this court reviews the denial for abuse of discretion. United States v.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-10183

Lucas, 516 F.3d 316, 345 (5th Cir.), cert. denied, 129 S. Ct. 116 (2008). If there
is error, this court employs the harmless error standard of review, requiring a
new trial “only when, after a review of the entire record, it appears that there is
a significant possibility that the prejudicial evidence had a substantial impact
on the jury verdict.” Id. The district court’s assessment of the prejudicial effect
of the improper evidence is given great weight, and its giving of a curative
instruction may render the prejudicial effect harmless. Id.
      Cook has not shown that “there is a significant possibility that the
prejudicial evidence had a substantial impact on the jury verdict.” See Lucas,
516 F.3d at 345. The district court sustained defense counsel’s objections to the
improper statements and immediately instructed the jury to disregard those
statements. The district court again instructed the jury at the end of the trial
to disregard the stricken testimony and to consider only “legally admissible
evidence and testimony.” The jury is presumed to follow the court’s instructions.
See Zafiro v. United States, 506 U.S. 534, 540 (1993). The district court’s
instructions rendered the prejudicial effect of the comments harmless. See
Lucas, 516 F.3d at 345; see also United States v. Valles, 484 F.3d 745, 757 (5th
Cir.), cert. denied, 127 S. Ct. 3025 (2007).
      Further, the improper statements were harmless in view of the
overwhelming evidence of Cook’s guilt. See United States v. Millsaps, 157 F.3d
989, 993 (5th Cir. 1998). Based on information obtained from a confidential
informant, Lieutenant Paul Pothen obtained a search warrant for Cook’s
business, which was also his residence, to locate a safe which officers believed
contained firearms. When executing the search warrant, Lieutenant Pothen saw
a safe through the window in an adjacent property. Lieutenant Pothen spoke to
Melvin Anderson, the owner of the adjacent property, and asked who owned the
safe and what it contained. Anderson told Lieutenant Pothen that the safe




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                                      No. 08-10183

belonged to Cook. Detective Bristow read Cook his Miranda1 rights, and Agent
Tarango questioned Cook about the safe and its contents. Cook admitted that
he knew about the safe, that the safe held rifles, and that the rifles belonged to
him. Agent Tarango asked for and received Cook’s written permission to search
the safe. At the request of Agent Tarango, Cook opened the safe. Agents found
numerous firearms in the safe. Agent Tarango testified that one of the firearms
was traced directly to Cook. The parties stipulated that Cook was a felon.
Special Agent Daniel Kaase testified that each of the firearms was manufactured
outside of Texas and had traveled in interstate commerce to Texas. In view of
the overwhelming evidence of Cook’s guilt, there is not a significant possibility
that the improper statements concerning Cook’s criminal history and pending
charges had a substantial impact on the jury’s verdict. See Lucas, 516 F.3d at
345; United States v. Le, 512 F.3d 128, 133-34 (5th Cir. 2007).
      Cook argues that evidence that the firearms at issue had previously
traveled in interstate commerce was insufficient to establish the interstate
commerce element of the offense. Cook concedes that this argument is foreclosed
by this court’s decision in United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.
2001).
      For the first time on appeal, Cook argues that the Government was
required and failed to prove that he knew: that he was a felon, that he possessed
a firearm, and that the possession of the firearm affected interstate commerce.
He argues that United States v. Dancy, 861 F.2d 77, 81-82 (5th Cir. 1988), was
rendered invalid by Staples v. United States, 511 U.S. 600 (1994), and Bryan v.
United States, 524 U.S. 184 (1998). This court rejected the same argument in
United States v. Schmidt, 487 F.3d 253, 254-55 (5th Cir. 2007).
      At sentencing, the district court orally pronounced a sentence of 51 months
of imprisonment. The written judgment provides for a sentence of 63 months of


      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

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imprisonment. “In this Circuit, it is well settled law that where there is any
variation between the oral and written pronouncements of sentence, the oral
sentence prevails.” United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001)
(internal quotation marks and citations omitted). Because the written judgment
in this case conflicts with the oral pronouncement of judgment, the oral
pronouncement controls. See id. Therefore, we remand the case for the district
court to amend its written judgment to conform to its oral sentence.
      AFFIRMED; REMANDED FOR DISTRICT COURT TO AMEND
WRITTEN JUDGMENT TO CONFORM TO ORAL SENTENCE.




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