     Case: 11-50808     Document: 00512045778         Page: 1     Date Filed: 11/07/2012




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

                                                                            FILED
                                                                         November 7, 2012
                                     No. 11-50808
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

AURELIA OCHOA HERNANDEZ, also known as Rachel Tovar, also known as
Aurelia Hernandez; PEDRO DANIEL TOVAR,

                                                  Defendants-Appellants


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 1:11-CR-131-2


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Defendants-Appellants Aurelia Ochoa Hernandez, Pedro Daniel Tovar,
and 19 others were named in a 47-count indictment. Hernandez was named in
all 47 counts, consisting of conspiracy to make false statements in connection
with firearms sales, export firearms contrary to law, and conceal firearms prior
to exportation (Count 1); smuggling firearms (Count 2); making false statements
in firearms records and aiding and abetting (Counts 3-44); being a felon in


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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possession of a firearm (Count 45); conspiracy to commit money laundering
(Count 46); and money laundering (Count 47). Tovar was named in five counts:
Count 1, Count 2, and three counts of making false statements in firearms
records and aiding and abetting (Counts 20, 38, and 39). The indictment alleged
that Hernandez and Tovar participated in a conspiracy to acquire firearms in
Texas through the use of straw purchasers and then transport the firearms to
Mexico in exchange for cash.
      Following a jury trial, Hernandez and Tovar were found guilty as charged.
Hernandez was sentenced to a total of 360 months of imprisonment, and Tovar
was sentenced to a total of 97 months of imprisonment. Hernandez challenges
her convictions, and Tovar challenges his sentences.
Aurelia Ochoa Hernandez
      Hernandez first argues that two remarks during the government’s closing
argument amounted to prosecutorial misconduct. The first occurred while one
of the prosecutors was arguing that the jury should infer that Hernandez had
transported the firearms involved into Mexico. The prosecutor stated,
            So how do we know that Aurelia Hernandez was in
            charge of transportation? How do we know that she
            was the one taking the firearms to Charlie? Well, I will
            present to you that there are lots of ways. There’s been
            lots of evidence to show that she’s the one to do it. And
            I think one of the best pieces of evidence is one that’s
            more of an inference. You saw that we found this gun,
            and we found three others. Four semi-autos were
            found. And, trust me, the ATF, they looked for them.
            You heard about at least two search warrants they did.
            We found four.
                   And the indictment—the indictment has a lot
            listed in it, at least about 50. And Joey Lira told you he
            thought it was up to 60 or 62. Where are those other
            guns? They’re in Mexico. That’s why we couldn’t find
            them. They’re with Charlie, or Charlie has already
            passed them on to somebody else. And how did they get
            there? (Emphasis added.)

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      Hernandez contends that the prosecutor’s statement, “Trust me, the ATF,
they looked for them,” constituted improper bolstering of the evidence by the
government through a personal statement. Hernandez also argues that the use
of the word “trust” was particularly prejudicial because “trust” appears on
United States currency and thus even more directly invoked the imprimatur of
the sovereignty of the United States.
      The second remark was made by the other prosecutor during the
government’s rebuttal to the defendants’ closing arguments. In expounding on
how Hernandez was able to cross the border into Mexico with firearms without
being detected, the prosecutor stated,
            How did she get across the border with these guns? I
            mean, I guess it’s not in the record, but it’s obvious to all
            of us. This woman is in her 50s. Take a look at her.
            Would you think she’s carting around semiautomatic
            assault rifles?[] Let’s complete the picture. How about
            in a pickup truck full of junk with five or six dogs
            running around there barking and frankly messing the
            interior of the truck up so that it stunk and she’s just
            going into Mexico. Is the American side really going to
            stop her and subject her to great scrutiny? I suggest to
            you they didn’t. They obviously didn’t. And she knew
            it. She knew it. (Emphasis added.)
Hernandez contends that the prosecutor acted improperly by arguing facts that,
in his own words, were “not in the record.”
      Hernandez did not object to the prosecutors’ remarks. Thus, we review
this issue under the plain error standard. See United States v. Gracia, 522 F.3d
597, 599-600 (5th Cir. 2008). To show plain error, the appellant must show a
forfeited error that is clear or obvious and that affects her substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). In the context of improper
prosecutorial remarks, the substantial rights prong “sets a high bar,” with the
determinative question being “whether the prosecutor’s remarks cast serious
doubt on the correctness of the jury’s verdict.” United States v. Morin, 627 F.3d


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985, 1000 (5th Cir. 2010) (internal quotation marks and citation omitted), cert.
denied, 131 S. Ct. 2126 (2011). If Hernandez meets her burden under the first
three prongs of the plain error standard, we have the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See Gracia, 522 F.3d at 600.
      “A prosecutor is confined in closing argument to discussing properly
admitted evidence and any reasonable inferences or conclusions that can be
drawn from that evidence.” United States v. Mendoza, 522 F.3d 482, 491 (5th
Cir. 2008). It is improper for a prosecutor to make a personal assertion that
vouches for the credibility of a witness. Gracia, 522 F.3d at 601. Additionally,
“[a] prosecutor may not directly refer to or even allude to evidence that was not
adduced at trial.” Mendoza, 522 F.3d at 491.
      Even if Hernandez can show that the prosecutors’ remarks constituted
clear or obvious error, she cannot show an effect on her substantial rights. See
Morin, 627 F.3d at 1000. The effect of a prosecutor’s remarks is evaluated in the
context of the trial as a whole. Mendoza, 522 F.3d at 492. We consider “(1) the
magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy
of any cautionary instruction by the judge, and (3) the strength of the evidence
supporting the conviction.” United States v. Thompson, 482 F.3d 781, 785 (5th
Cir. 2007) (internal quotation marks and citation omitted).
      First, the magnitude of the prejudicial effect of the disputed comments was
not significant, as the comments were isolated and were immediately followed
by references to evidence in the record from which reasonable inferences could
be drawn to support the underlying arguments each prosecutor was attempting
to make. See Mendoza, 522 F.3d at 494-97; Thompson, 482 F.3d at 786. Second,
the district court’s instructions to the jury mitigated any harm from the disputed
comments, as the jurors were repeatedly told that the statements of the lawyers
were not evidence and that they were to consider only the evidence as observed



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by them from witnesses and exhibits that were admitted. See Thompson, 482
F.3d at 787.
       Third, the evidence against Hernandez was significant. For example, the
testimony of Jose Lira, Jordan McCoy, Nicholas Tovar, and Justin Caudle, all
co-defendants who had pleaded guilty, indicated that Hernandez transported the
firearms into Mexico for the conspiracy. Their testimony was corroborated by
the discovery of a piece of gray carpet behind the back seat of Hernandez’s truck
that matched the type of carpet used to wrap the firearms, records that reflected
repeated border crossings by Hernandez during the time of the conspiracy, and
the discovery by border patrol agents during one of Hernandez’s crossings into
the United States that she had $11,170 in cash stuffed inside her bra that she
failed to declare. Hernandez has not shown plain error regarding this issue. See
Mendoza, 522 F.3d at 494-97; Thompson, 482 F.3d at 785-88.
       Hernandez next argues that the district court abused its discretion when
it denied her pretrial pro se motions for substitution of her appointed counsel.
“Although an indigent criminal defendant has a right to be represented by
counsel, he does not have a right to be represented by a particular lawyer, or to
demand a different appointed lawyer except for good cause.” United States v.
Young, 482 F.2d 993, 995 (5th Cir. 1973). Good cause includes “a complete
breakdown in communication or an irreconcilable conflict which leads to an
apparently unjust verdict.” Id.; accord United States v. Simpson, 645 F.3d 300,
307 (5th Cir.), cert. denied, 132 S. Ct. 541 (2011). We review the district court’s
denial of Hernandez’s motions for abuse of discretion. See Simpson, 645 F.3d at
307.
       According to Hernandez, good cause existed based on a complete
breakdown in communication because her counsel impeded the trial preparation
process by having Hernandez rendered unavailable while Hernandez’s
competency to stand trial was being examined and because counsel failed to
rectify auditory hearing issues that counsel believed Hernandez was having

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during their meetings. Hernandez also contends that an irreconcilable conflict
existed because counsel moved for a competency exam after Hernandez declined
a plea agreement and because counsel insulted Hernandez during a hearing
before the district court by disingenuously stating that she believed Hernandez
had an auditory hearing issue.
      Hernandez’s arguments are not borne out in the record, as the assertions
in her motions and the statements by her and her counsel to the district court
during the hearings involving her motions reflect that Hernandez and her
counsel continued to meet and communicate and that Hernandez’s complaints
mainly related only to her disagreement with counsel’s opinion about whether
to use of a particular piece of evidence at trial. Hernandez has not shown that
the district court abused its discretion in denying her motions for substitution
of counsel.
      In her final argument, Hernandez claims that her counsel provided
ineffective assistance by failing to object to the government’s improper remarks
during its closing argument and failing to move for a judgment of acquittal at
the close of the evidence. We resolve ineffective assistance claims on direct
appeal only in rare cases where the record allows for a fair evaluation of the
merits of the claims. United States v. Sanchez-Pena, 336 F.3d 431, 445 (5th Cir.
2003). This is not one of those rare cases. Accordingly, we decline to consider
Hernandez’s ineffective assistance claims, without prejudice to her ability to
raise them in a motion pursuant to 28 U.S.C. § 2255.
Pedro Daniel Tovar
      In his first argument, Tovar contends that the district court erred in
applying a base offense level of 26 instead of 14 under U.S.S.G. § 2M5.2. “This
court reviews de novo the district court’s guidelines interpretations and reviews
for clear error the district court’s findings of fact.” United States v. Longstreet,
603 F.3d 273, 275-76 (5th Cir. 2010) (internal quotation marks and citation



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omitted). A factual finding is not clearly erroneous so long as it is plausible in
light of the record as a whole. Id. at 276.
      Tovar was ineligible for a base offense level of 14 under the version of
§ 2M5.2 applicable to him if he was accountable for more than 10 firearms. See
§ 2M5.2(a)(1)-(2) (2010). Under the rules regarding relevant conduct, the district
court was permitted to consider not only the acts committed, aided, or abetted
by Tovar personally but also all acts and omissions of others in furtherance of
the   conspiracy     that   were   reasonably   foreseeable    by   Tovar.      See
§ 1B1.3(a)(1)(A)-(B); United States v. Rodriguez, 553 F.3d 380, 395 (5th Cir.
2008).
      The trial evidence indicated that Tovar knew the details of the scheme and
was present or directly involved in a four straw purchases of firearms by Blanca
Tovar and five straw purchases by Elva Hernandes. Given his knowledge of the
nature of the scheme, it was reasonably foreseeable to Tovar during the time of
his participation in the conspiracy that other straw purchasers would buy at
least two more firearms. In fact, the evidence shows that Lance Mitchell Coll
made two straw purchases of firearms for the scheme during the time of Tovar’s
participation. The district court’s finding that Tovar was accountable for more
than 10 firearms was plausible in light of the record as a whole and thus not
clearly erroneous.
      In his second argument, Tovar contends that the district court erred when
it imposed the two-level enhancement under § 3C1.1 for obstruction of justice
based on his failure to appear in court for the reading of the verdict. The district
court’s finding that a defendant obstructed justice under § 3C1.1 is reviewed for
clear error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008).
“Obstructive conduct can vary widely in nature, degree of planning, and
seriousness,” and the conduct to which the enhancement applies “is not subject
to precise definition.” § 3C1.1, comment. (n.3).



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      Tovar delayed the court proceedings and misled the district court
regarding the cause of his absence, caused the district court to authorize a
warrant for his arrest after he failed to appear by the time the proceedings
adjourned about an hour and a half after he had been contacted and told to
appear, and violated the conditions of his bond by traveling out of state without
permission. The district court did not clearly err in finding that his conduct
constituted obstruction of justice for purposes of § 3C1.1.
      In any event, any error by the district court regarding the guidelines
issues raised by Tovar would be harmless because the district court indicated
that it would have imposed the same sentences on Tovar pursuant to 18 U.S.C.
§ 3553(a), even if all of Tovar’s objections to the calculation of his guidelines
range had been sustained and the lesser guidelines range advanced by him were
applicable. See United States v. Bonilla, 524 F.3d 647, 657-58 (5th Cir. 2008).
      In his final argument, Tovar contends that his sentence is substantively
unreasonable because the district court failed to adequately consider the need
to avoid an unwarranted sentencing disparity with similarly situated
co-defendants.   Tovar has not established the existence of any sentencing
disparity because he does not cite any evidence that lower sentences were
imposed in cases with facts substantially similar to his case. See United States
v. Sanchez-Ramirez, 497 F.3d 531, 535 n.4 (5th Cir. 2007); United States v.
Smith, 440 F.3d 704, 709 (5th Cir. 2006). Apart from Hernandez, who received
a 360-month sentence, all of Tovar’s other co-defendants who were convicted had
pleaded guilty prior to Tovar’s trial.      Tovar’s sentence is presumptively
reasonable because it falls within his properly calculated guidelines range, see
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008), and he has
not shown that his sentence constituted an abuse of discretion.
      The judgments of the district court are AFFIRMED.




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