     Case: 17-40340      Document: 00514548217         Page: 1    Date Filed: 07/10/2018




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

                                      No. 17-40340                             FILED
                                                                           July 10, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

              Plaintiff - Appellee

v.

YARENCY ZULEIMA LANDERO-GONZALEZ,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:16-CR-1020-1


Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Yarency Zuleima Landero-Gonzalez appeals her conviction for two
counts of unlawfully transporting undocumented aliens in violation of 8 U.S.C.
§ 1324. She argues that the district court committed plain error by sua sponte
unsealing her financial affidavit and giving it to the prosecution for use on
cross-examination for impeachment purposes. Because she lodged no objection




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40340
in the district court, plain error review applies. Because she has failed to
demonstrate that any error was “clear or obvious,” 1 we AFFIRM.
       Landero-Gonzalez was charged with two counts of unlawfully
transporting undocumented aliens in violation of 8 U.S.C. § 1324 following
apprehension at a border checkpoint. A few days after her arrest, Landero-
Gonzalez submitted her financial affidavit to the district court to establish
eligibility for court-appointed counsel under the Criminal Justice Act (the
“CJA”), 18 U.S.C. § 3006A, and she was appointed a Federal Public Defender.
       At trial, during direct examination by defense counsel, Landero-
Gonzalez testified about the amount of money she possessed on the day of her
arrest, and that her husband gave her some of that money. The judge then
held a bench conference during the lunch break, explaining that he was going
to unseal the financial affidavit because it contradicted some of Landero-
Gonzalez’s testimony. Landero-Gonzalez’s counsel was granted time to review
the financial affidavit and then said she had no objection “at this time.”
       Over objection, the prosecutor introduced the financial affidavit as an
exhibit for impeachment purposes during cross-examination and used it to
impeach Landero-Gonzalez’s credibility. The prosecutor pointed to statements
made in the affidavit that contradicted Landero-Gonzalez’s testimony at trial
about whether she was married and the amount she paid monthly for her car. 2
In its rebuttal closing argument, the Government alluded to the financial



       1   The Government argues that she waived any objection by her counsel’s comments
at trial by stating she had no objection “at this time.” Reviewing the relevant portions of the
transcript in full, we disagree and apply plain error review.
       2 More specifically, the financial affidavit said she was single and thus had no spousal
income, lived with her boyfriend, and “food stamps” was her only source of income. But
Landero-Gonzalez testified at trial that she had a common law husband, he was employed,
and she shared in his income. The financial affidavit also failed to include monthly car
payments as part of her monthly bills, even though at trial Landero-Gonzalez testified to a
$396 monthly car payment, plus insurance, for the vehicle listed in the financial affidavit.
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                                  No. 17-40340
affidavit to suggest that Landero-Gonzalez’s testimony was untrustworthy.
The jury found her guilty. She appeals only the judgment of conviction and
raises only issues related to the financial affidavit.
      Landero-Gonzalez concedes, and the record confirms, that the standard
of review is plain error because she did not object to the district court’s
unsealing of the financial affidavit. To show plain error, the defendant “must
show (1) an error (2) that was clear or obvious (3) that affected his substantial
rights.” United States v. Avalos-Martinez, 700 F.3d 148, 153 (5th Cir. 2012)
(per curiam). “Once those three conditions have been met, ‘the court of appeals
should exercise its discretion to correct the forfeited error if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.’”
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1905 (2018) (quoting Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)).
       Landero-Gonzalez argues that the district court denied her the right to
a fair trial and violated Judicial Conference policy when, immediately after her
direct-examination testimony concluded, the district court sua sponte unsealed
her financial affidavit and gave it to the prosecutor to use as she wished. She
also suggests that this might be a violation of her Fifth Amendment right
against self-incrimination because she was never given any warning that her
answers would be used against her in proceedings, and she additionally
indicates that statements in a financial affidavit seeking counsel are
“compelled” statements.
      We pretermit consideration of whether the district court erred because
we conclude any error is not “clear or obvious.” Landero-Gonzalez concedes a
lack of precedent governing the district court’s remedies when a sealed
affidavit is contradicted by trial testimony. She cites, instead, to volume 7,
part A of the Guide to Judiciary Policy (the “Guide”), which provides
“Guidelines for Administering the CJA and Related Statutes” under a program
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                                 No. 17-40340
called “Defender Services.” GUIDE TO JUDICIARY POLICY, Vol. 7, Pt. A (2017).
The Guide states:
            Upon request, or upon the court’s own motion,
            documents pertaining to activities under the CJA . . .
            may be judicially placed under seal or otherwise
            safeguarded until after all judicial proceedings . . . in
            the case are completed and for such time thereafter as
            the court deems appropriate. Interested parties
            should be notified of any modification of such order.
Id. at § 510.40.     She argues that this section mandates “notice” before
unsealing the financial affidavit and disclosing it to the prosecutor. The policy
states nothing about the timing or content of any such notification. The district
court in this case gave Landero-Gonzalez’s attorney time to review the affidavit
and to make an objection. We perceive no clear or obvious error in the handling
of the notification, even assuming it is required. Cf. Hollingsworth v. Perry,
558 U.S. 183, 193 (2010) (per curiam) (observing that “the policy conclusions of
the Judicial Conference may not be binding on the lower courts”).
      She points to nothing else that would suggest that the district court’s
actions violated her constitutional rights. We ordinarily do not find plain error
in the absence of controlling precedent or where the appellant’s theory would
require the extension of existing precedent. United States v. Evans, 587 F.3d
667, 671 (5th Cir. 2009); see also United States v. Narez-Garcia, 819 F.3d 146,
152 (5th Cir. 2016).     This is not a case where controlling precedent is
unnecessary because it is “plain from the face of the relevant statutes and
regulations.” United States v. Guillen-Cruz, 853 F.3d 768, 772 (5th Cir. 2017).
The arguments Landero-Gonzalez makes are “subject to reasonable dispute,”
rendering a finding of plain error improper. Puckett v. United States, 556 U.S.
129, 135 (2009).
      AFFIRMED.


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