     Case: 17-50520      Document: 00514646959         Page: 1    Date Filed: 09/18/2018




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

                                                                                FILED
                                    No. 17-50520                        September 18, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID LOPEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:16-CR-896-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       David Lopez was convicted by a jury of one count of conspiracy to possess
with intent to distribute 1000 kilograms or more of marijuana and one count
of possession with intent to distribute 100 kilograms or more of marijuana. He
now appeals these convictions and his concurrent 293-month sentences. In his
first ground for relief, Lopez asserts that the district court erred by failing to
instruct the jurors that they must find that one of the conspirators committed


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50520

an overt act in furtherance of the conspiracy. Because he did not object to the
jury instructions, we review his argument for plain error.        United States
v. Fairley, 880 F.3d 198, 208 (5th Cir. 2018), petition for cert. filed (May 24,
2018) (No. 17-1607). The Government is not required to prove an overt act in
furtherance of a drug conspiracy under 21 U.S.C. § 846. United States v.
Shabani, 513 U.S. 10, 15-16 (1994). Because the Government was not required
to prove an overt act, the district court did not err, much less plainly err, in
failing to instruct the jurors that they must make such a finding.
      In addition, Lopez argues that the district court erred by indicating that
the jurors could rely on their own interpretation of recorded Spanish
conversations if they believed that the translated transcripts were not
accurate. He concedes that he did not object on this ground and that plain
error review applies. See Fairley, 880 F.3d at 208. The district court’s failure
to advise the jurors that they should not rely on any knowledge of the language
spoken in the recording constitutes clear and obvious error.         See Puckett
v. United States, 556 U.S. 129, 135 (2009). However, Lopez has failed to show
that the error affected his substantial rights because he did not allege that the
transcripts contained any inaccuracies that would have altered the jury’s
verdict. See Fairley, 880 F.3d at 208; United States v. Rizk, 842 F.2d 111, 112
(5th Cir. 1988).
      Lopez also asserts that his trial counsel rendered ineffective assistance
because he failed to argue that the prosecution was barred by the limitations
period. We typically do not review claims of ineffective assistance on direct
appeal. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). However,
because the record is sufficient to review Lopez’s claim, we do so here. See
United States v. Rosalez-Orozco, 8 F.3d 198, 199-202 (5th Cir. 1993). “[A]n
indictment satisfies the requirements of the statute of limitations if the



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                                  No. 17-50520

government alleges and proves . . . that the conspiracy continued into the
limitations period.” United States v. Lokey, 945 F.2d 825, 832 (5th Cir. 1991).
Lopez was charged with participating in a single conspiracy over 14 years. As
he concedes, the Government presented evidence that he had provided drugs
to a coconspirator within five years of the indictment’s issuance. See 18 U.S.C.
§ 3282(a). Counsel does not render ineffective assistance by failing to make a
meritless objection. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) (28
U.S.C. § 2254 proceeding).
      With respect to his sentencing, Lopez contends that the district court
erred in including drug loads attributed to Ivan Salinas in his relevant conduct.
To the extent he is asserting that there was insufficient evidence of a
connection between him and Salinas because Salinas did not testify at his trial
and because any evidence showing a connection would constitute hearsay, the
district court may rely on hearsay testimony and on information included in
the presentence report (PSR) if there exist sufficient indicia of reliability. See
United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012); United States
v. Golden, 17 F.3d 735, 736 (5th Cir. 1994). Contrary to Lopez’s assertion,
ample evidence was presented at trial and in the PSR connecting Salinas and
Lopez, and Lopez failed to rebut this reliable evidence. See Harris, 702 F.3d
at 230. In addition, Lopez contends that the district court erred in holding him
accountable for 69 kilograms of cocaine found at the time of Salinas’s arrest
because Salinas stated he had agreed to transport only marijuana for Lopez
and because Lopez informed an undercover officer years later that he would
not ship cocaine. Because he did not object to the drug quantity on this ground
in the district court, we review for plain error. See United States v. Rojas, 812
F.3d 382, 413 (5th Cir. 2016). The unrebutted evidence in the PSR showed
that Lopez had provided Salinas with cocaine as well as marijuana, and Lopez



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                                  No. 17-50520

therefore has not established a clear or obvious error arising from the court’s
reliance on that information. See United States v. Guzman-Reyes, 853 F.3d
260, 266 (5th Cir. 2017).
      Additionally, Lopez maintains that the district court erred in denying
his motion for a new trial based on an assertion that the Government failed to
correct the false testimony of a witness. We review the denial of a motion for
a new trial for abuse of discretion. United States v. Infante, 404 F.3d 376, 387
(5th Cir. 2005). A defendant is entitled to a new trial on a claim arising from
the Government’s failure to correct false testimony if he establishes that (1) the
testimony was false, (2) the prosecution knew that the testimony was false,
and (3) the testimony was material. United States v. Stanford, 823 F.3d 814,
838-39 (5th Cir. 2016). Because the evidence was elicited from a government
witness on cross-examination, the Government did not have a duty to correct
it. See United States v. O’Keefe, 128 F.3d 885, 894 (5th Cir. 1997). Additionally,
Lopez has not shown that the evidence was material because there is not a
reasonable probability that he would have been acquitted if the Government
had corrected the witness’s statements, as the correction would have further
incriminated Lopez. See id.
      The judgment of the district court is thus AFFIRMED.




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