     Case: 16-50480      Document: 00513931644         Page: 1    Date Filed: 03/29/2017




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

                                    No. 16-50480                               FILED
                                  Summary Calendar                       March 29, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GILBERTO BROCHE RUIZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:15-CR-312-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Gilberto Broche Ruiz was convicted following a jury trial of conspiracy to
possess and possessing with intent to distribute 500 grams or more of
methamphetamine. He was sentenced to concurrent terms of 210 months of
imprisonment. He appeals his conviction, arguing that he was a denied a fair
trial because the Government elicited testimony that he had invoked his
Fourth Amendment right to refuse a warrantless search of his cell phone.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-50480     Document: 00513931644      Page: 2   Date Filed: 03/29/2017


                                  No. 16-50480

      Because Ruiz failed to object to the complained-of testimony, review is
for plain error only. See Puckett v. United States, 556 U.S. 129, 135 (2009). To
establish plain error, he must show a forfeited error that is clear or obvious
and that affects his substantial rights. See id. In order to show that an error
affected his substantial rights, Ruiz must demonstrate that the error affected
the outcome of the proceedings. See id. If he makes such a showing, this court
has the discretion to correct the error but will do so only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id.
      Ruiz’s argument is unavailing. Any error is not clear or obvious as our
court has only assumed, without deciding, that such testimony may be
improper. See United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007). In
any event, Ruiz fails to show that any error affected the outcome of the
proceedings. See United States v. Runyan, 290 F.3d 223, 249-50 (5th Cir.
2002). The record reflects that the prosecutor did not focus on or highlight
Ruiz’s refusal to consent to a warrantless search, and the evidence of Ruiz’s
guilt was substantial. See id. at 250-51. Thus, Ruiz fails to show that the
error, if any, affects his substantial rights. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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