                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS           July 31, 2003

                        FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                  Clerk


                             No. 01-51118
                           Summary Calendar



     UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

          versus

     IGNACIO GUERRA-GARZA,

                                          Defendant-Appellant.




             Appeal from the United States District Court
                   for the Western District of Texas
                         USDC No. SA-01-CR-75-5



Before GARWOOD, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Ignacio Guerra-Garza was convicted by a jury of possession

with intent to distribute less than one hundred kilograms of

marihuana.     The district court sentenced Guerra-Garza to thirty-

three months’ imprisonment and three years’ supervised release.

     Guerra-Garza challenges as improper and prejudicial comments



     *
      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opinion should not be published and is not precedent except under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.
made by the Assistant United States Attorney (AUSA) during his

opening closing argument. The comments, as appellant characterizes

them, implored the jury to take part in the war on drugs and

proposed that in order to acquit Guerra-Garza, the jury would have

to find that the Government’s witnesses committed perjury and

engaged in a conspiracy.          Guerra-Garza contends that the comments

improperly   bolstered      the    credibility      of   government     witnesses,

distracted       the   jury’s     attention      from     the       evidence,     and

impermissibly      interjected     broader    issues     into   the     case.     He

contends that      the   Government’s       evidence     on   the    issue   of   his

knowledge of the marihuana was weak and inconsistent.                    He argues

that the AUSA’s comments interfered with the jury’s assessment of

the evidence, and he asserts that the improper comments were not

cured by instruction.        He argues that the comments affected the

verdict and the fairness and integrity of the proceedings, amounted

to plain error, and require reversal.

     We must decide whether the disputed remarks were improper and

whether    the    remarks   “prejudiced       the    defendant’s       substantive

rights.”    United States v. Munoz, 150 F.3d 401, 414, 415 (5th Cir.

1998).    Guerra-Garza concedes that review is for plain error as no

objection whatever was made below.            Under plain error review, we

will reverse a conviction “‘only if the government’s closing

arguments seriously affected the fairness or integrity of the

proceedings and resulted in a miscarriage of justice.’” United



                                        2
States   v.   Knezek,      964    F.2d   394,      399   (5th    Cir.   1992).     The

“prosecutor’s comments must be considered in the context of the

entire trial.”       Id. at 400.

     If we assume for the purpose of argument that the challenged

comments, separately or in combination, were improper, we must

decide if “the jury would have found [Guerra-Garza] guilty had it

not been for the prosecutor’s improper argument.” United States v.

Goff, 847 F.2d 149, 165 (5th Cir. 1988).                 To do so, we consider the

magnitude of the statements’ prejudice, the curative effect of any

“cautionary instructions,” and the strength of the evidence on

guilt.   United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir.

1995).

     Defense counsel did not object to the AUSA’s closing comments,

and thus,     the    district      court    did    not    give   specific   curative

instructions when the challenged comments were made.                     Prior to the

presentation of evidence and in the charge, the district court

directed the        jury   to    consider       only   the   evidence,    namely   the

testimony given under oath and the exhibits that were admitted.

The district court instructed the jury that statements and argument

made by the district court and the lawyers were not evidence.                      See

United States v. Wyly, 193 F.3d 289, 299-300 (5th Cir. 1999);

Tomblin, 46 F.3d at 1390-91; United States v. Parekh, 926 F.2d 402,

408-09 (5th Cir. 1991).              The jury is presumed to follow its

instructions.       Wyly, 193 F.3d at 299.


                                            3
     Guerra-Garza    was    indicted       for   conspiracy   to    distribute

marihuana and for possession with intent to distribute less than

one hundred kilograms of marihuana.              The jury, which acquitted

Guerra-Garza on the conspiracy charge, did not allow the AUSA’s

closing comments to influence its decision on the issue of Guerra-

Garza’s involvement in a drug conspiracy.           The jury determines the

credibility of the witnesses and was free to discredit Guerra’s

testimony on knowledge.      See United States v. Martinez, 975 F.2d

159, 161 (5th Cir. 1992).

     In light of the evidence presented, which was significantly

stronger than that minimally necessary to sustain a conviction, and

the district court’s instructions, Guerra-Garza has not shown that

the prejudicial effect of the AUSA’s comments “‘affected the

fairness   or   integrity   of   the   proceedings     and    resulted    in   a

miscarriage of justice.’” Knezek, 964 F.2d at 400.                 Accordingly,

the judgment of the district court is

                                 AFFIRMED.




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