     Case: 10-50320     Document: 00511517267          Page: 1    Date Filed: 06/22/2011




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

                                                 FILED
                                                                            June 22, 2011
                                     No. 10-50320
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FILOMENO TREVINO FRANCO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:09-CR-284-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        A jury convicted Filomeno Trevino Franco of one count of attempted escape
from the Odessa Detention Center (ODC), a violation of 18 U.S.C. § 751(a). The
district court sentenced Franco to 57 months of imprisonment and a three-year
term of supervised release. Franco filed a timely notice of appeal.
        According to Franco, the Government failed to present any evidence that
would sustain his conviction. To prove an escape offense under § 751(a), the
Government must prove that the “defendant made 1) an unauthorized departure

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                  No. 10-50320

or escape, 2) from custody of an institution where the prisoner is confined by
direction of the Attorney General, 3) where the custody or confinement is by
virtue either of arrest for a felony or conviction of any offense.” United States v.
Taylor, 933 F.2d 307, 309 (5th Cir. 1991). Franco stipulated to the second and
third elements of the escape offense. To prove an attempt, the Government must
show that “the defendant acted with the kind of culpability otherwise required
for the commission of the underlying substantive offense” and that “the
defendant had engaged in conduct which constitutes a substantial step toward
commission of a crime.” United States v. Partida, 385 F.3d 546, 560 (5th Cir.
2004).
      In determining whether there was sufficient evidence to support the
conviction, we must view the evidence in the light most favorable to the jury’s
verdict. See United States v. Resio-Trejo, 45 F.3d 907, 910 (5th Cir. 1995). The
evidence here was that a bar was missing from Franco’s cell, which he alone
occupied. Two other inmates saw Franco outside his cell in the catwalk area
between his cell and an exterior wall that had windows. The fifth window from
the end was broken, and Franco had had one of the other inmates call a phone
number and state that Franco needed help. The note also referenced the “fifth
one.” Franco later had that same inmate call the number again to find out when
the recipient of the telephone call was coming. A reasonable trier of fact could
conclude from this evidence that Franco took a substantial step toward escaping
from the ODC. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We thus
uphold the jury’s verdict. Id.
      Franco argues that, during closing argument, the prosecutor improperly
commented that the evidence against him was overwhelming. As Franco did not
object in the district court, his challenge to the prosecutor’s closing arguments
is reviewed only for plain error. See United States v. Thompson, 482 F.3d 781,
785 (5th Cir. 2007). A review of the challenged comment shows that it was not
improper because it was clear that any conclusions urged by the prosecutor were

                                         2
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                                  No. 10-50320

to be drawn from the evidence. See id. at 785-86. Accordingly, Franco has failed
to show plain error in this regard. See Puckett v. United States, 129 S. Ct. 1423,
1429 (2009).
      AFFIRMED.




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