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

                                                 FILED
                                                                         December 7, 2009

                                     No. 07-41240                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff – Appellee
v.

RAMIRO HERNANDEZ-FLOREZ,

                                                   Defendant – Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 5:07-CR-375-ALL


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ramiro Hernandez-Florez appeals his jury convictions and resulting
concurrent 120-month prison sentences for one count conspiracy to possess with
intent to distribute marijuana and one count of aiding and abetting the
possession with intent to distribute marijuana. On March 26, 2004, Hernandez-
Florez was caught by members of the Laredo Multi-Agency Narcotics Task Force
with a large amount of marijuana in the back of a dump truck he was driving.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 07-41240

He told the agents he could obtain additional marijuana and later did so.
Herndandez-Florez claims he was working at the direction of the police when he
picked up the second, much larger, load and was promised he would not be
prosecuted. Combined, the loads consisted of nine duffel bags of marijuana and
a large number of bundles.
      Three years later, Hernandez-Florez was charged with conspiracy to
possess marijuana with the intent to distribute and aiding and abetting
possession of a controlled substance with intent to distribute. The prosecution
alleged each count involved a quantity of 1000 kilograms or more of a mixture
or substance containing a detectable amount of marijuana. Hernandez-Florez
pled not guilty to both counts and claimed that to the extent he was responsible
for any amount, it was only the first load which he claimed was no more than
100 kilograms. The jury found Hernandez-Florez guilty on both counts and
found the amount to be “100 kilograms or more” but less than 1000 kilograms.
Such a finding indicated the jury concluded that all nine duffel bags and none
of the bundles—consisting of 231 kilograms of marijuana—belonged to the first
load, and rejected Hernandez-Florez’s contention that only two bags were a part
of the first load.
      Hernandez-Florez appeals his convictions. He argues that the court erred
in refusing to grant a brief continuance so that he could be represented by
retained counsel of choice, by instructing the jury he had admitted guilt to the
charges against him and the only issue in dispute was the quantity of drugs
involved, and in allowing Agent Joe Lopez to testify as to the amount of
marijuana contained in the first load in Hernandez-Florez’s truck.




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                                         I
      Hernandez-Florez argues that the district court erred when it—without
providing a reason or justification—refused to grant a brief continuance so that
he could be represented by retained counsel of choice. We find that Hernandez-
Florez was given a fair and reasonable opportunity to obtain counsel of choice
and the decision to deny a continuance was not an abuse of discretion by the
district court.
      The grand jury filed the indictment against Hernandez-Florez on March
13, 2007. He made his initial court appearance on April 5, 2007, at which time
he requested appointed counsel.       The district court inititailly appointed a
Federal Public Defender to represent Hernandez-Florez, but on May 11, the
court appointed private attorney Eustorgio Perez to represent him. The district
court granted Hernandez-Florez a week continuance so that Perez could catch
up and to prepare a proffer. On June 15, Perez appeared at a pretrial hearing
where the parties discussed the possibility of entering into a plea agreement, but
on June 21 Perez informed the magistrate judge that the case would likely head
to trial; on June 25 Hernandez-Florez informed the court he wished to have a
bench trial. During the June 29 bench trial, the court determined that the
parties’ proffers were not sufficient to make a proper decision and that testimony
would have to be heard; the court reset the bench trial for July 3 and
alternatively set a jury trial for July 16. Hernandez-Florez also filed a motion
to suppress all the evidence.
      On July 11, five days before the scheduled jury trial, the district court held
a pretrial hearing after Hernandez-Florez informed the court he terminated
Perez. There Hernandez-Florez stated that his family had decided to pay for a


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private lawyer and that they would be making a final decision shortly.
Hernandez-Florez stated that both attorneys under consideration were aware
that the trial was set for the following Monday. On July 16, the court held a
hearing on Hernandez-Florez’s motion to suppress and Perez appeared on behalf
of Hernandez-Florez. Perez told the court Hernandez-Florez’s chosen lawyer
could not appear that week because of a scheduling conflict. The court at that
point told Hernandez-Florez that the case would be tried that week and that he
could either proceed with Perez or pro se. Hernandez-Florez agreed to proceed
with Perez as his attorney. During this exchange no objection to the court’s
decision to proceed or motion for continuance was explicitly made.
       “When a defendant has been given a reasonable opportunity to obtain
counsel of his choice, the court retains broad discretion in evaluating a request
for a continuance.”1 Here the defendant had ample opportunity to obtain counsel
of his own choosing, but waited until the eve of trial.2                Even presuming
Hernandez-Florez properly preserved his objection below, he has not shown that
the district court abused its discretion in refusing to grant an implied motion for
continuance on the day of trial so that he could retain new counsel.


                                             II
       Hernandez-Florez next argues that the district court committed plain
error by impermissibly instructing the jury that Hernandez-Florez had admitted


       1
        Newton v. Dretke, 371 F.3d 250, 255 (5th Cir. 2004); see also United States v.
Paternostro, 966 F.2d 907, 912-13 (5th Cir. 1992).
       2
          See McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir. 1985) (“trial courts must
necessarily be wary of last minute requests to change counsel lest they impede the prompt and
efficient administration of justice”).

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                                        No. 07-41240

guilt to the charges against him and that the only issue in dispute was the
quantity of drugs involved.            As Hernandez-Florez did not object to the
instructions at trial, we review for plain error only.3 “A jury instruction is plain
error if (1) it was erroneous; (2) the error was plain; and (3) the plain error
affected the substantial rights of the defendant. This court has the discretion to
correct plain error where the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.”4
      The district court’s comments did not usurp the jury’s authority but simply
facilitated the decision-making process by reflecting the evidence in the record.5
As recognized by defense counsel during both opening statements and closing
arguments and by Hernandez-Florez himself, there was no dispute that
Hernandez-Florez did, to some extent, participate in a conspiracy and possess
a quantity of marijuana prior to being apprehended by law enforcement officials.
Rather, this case essentially turned on whether Hernandez-Florez’s acceptance
of the second shipment of marijuana under the alleged authority of law
enforcement officials somehow negated his responsibility for the first shipment
of marijuana, the extent of Hernandez-Florez’s involvement in the conspiracy,
and for what amount of drugs, if any, Hernandez-Florez could be held
accountable. As in United States v. Inocencio, the district court merely stated
the facts as provided by the evidence and relied upon the same evidence that the




      3
          United States v. Percel, 553 F.3d 903, 909 (5th Cir. 2008).
      4
          Id. (internal quotations and citations omitted).
      5
          See United States v. Inocencio, 40 F.3d 716, 729-30 (5th Cir. 1994).

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                                         No. 07-41240

defense counsel relied upon in closing.6                  Moreover, given the unusual
circumstances of this case, the district court’s comments were helpful in
clarifying “where the question and knot of the business lies.”7
       Furthermore, even if there was error, the district court provided numerous
curative instructions.8 The district court provided a detailed and thorough
explanation of the indictment, and in addition, explained that the Government
had the burden of proving Hernandez-Florez’s guilt beyond a reasonable doubt.
Moreover, the district court stressed to the jury that it alone had the power to
make credibility determinations, that although it had an obligation to follow the
law, it was free to disregard the court’s interpretation of the evidence, and that
it had the ultimate authority to determine Hernandez-Florez’s guilt or
innocence. In addition, the district court submitted all theories of defense for the
jury’s consideration. It is presumed that juries will follow the instructions
provided.9 Although this court has held in some cases that curative instructions
were not sufficient to remove the taint of substantially prejudicial comments
made by the district judge, this is not such a case. The district judge’s comments
were not sufficiently “quantitatively and qualitatively substantial” to pose any




       6
           See id. at 730-31.
       7
        Quercia v. United States, 289 U.S. 466, 469 (1933) (internal quotations and citations
omitted).
       8
           See Inocencio, 40 F.3d at 730-31.
       9
           United States v. Heffron, 314 F.3d 211, 222 (5th Cir. 2002).

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                                         No. 07-41240

threat to the fairness of Hernandez-Florez’s trial.10 Accordingly, we do not find
the district court committed plain error.


                                               III
       Lastly, Hernandez-Florez argues the district court committed plain error
in allowing Agent Joe Lopez to testify as to the amount of marijuana contained
in the first load because Agent Lopez did not have personal knowledge. He
argues that Agent Lopez’s testimony affected Hernandez-Florez’s substantial
rights because it was the only evidence from which the jury could have concluded
the first load of drugs weighed more than 100 kilograms. We review this newly
raised issue for plain error only.11
       Even if the district court erred in admitting Agent Lopez’s testimony,
Hernandez-Florez’s substantial rights were not affected. There was sufficient
evidence in the record, in particular the testimony of Agent Jose Benavides, that
the two loads were distinctly packaged and that the first load consisted of the
nine duffel bags while the second load consisted of only bundles. Based on the
totality of the evidence, it was not unreasonable for the jury to conclude that the
first load consisted of over 100 kilograms of marijuana.12 Moreover, where the




       10
         United States v. Lankford, 196 F.3d 563, 572 (5th Cir. 1999) (internal quotations and
citations omitted).
       11
            United States v. Akpan, 407 F.3d 360, 373 (5th Cir. 2005).
       12
            See United States v. Ayala, 887 F.2d 62 (5th Cir. 1989) (“[W]hat the fact finder is
permitted to infer from the evidence in a particular case is governed by a rule of reason, and
. . . circumstances altogether inconclusive, if separately considered, may, by their number and
joint operation . . . be sufficient to constitute conclusive proof.” (internal quotations and
citations removed)).

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                                        No. 07-41240

complained upon evidence is largely cumulative of other evidence presented to
the jury, there is no harm in its admission.13
      The judgment of the district court is AFFIRMED.




      13
           See United States v. Insaulgarat, 378 F.3d 456, 466 (5th Cir. 2004).

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