                                                                                    FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                             FOR THE TENTH CIRCUIT                               April 2, 2019
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 18-1100
                                                    (D.C. No. 1:15-CR-00272-REB-13)
 JORGE LOYA-RAMIREZ, a/k/a Primo,                               (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, PHILLIPS, and MORITZ, Circuit Judges.
                   _________________________________

       A jury found Jorge Loya-Ramirez guilty of one count of conspiring to distribute

and to possess with intent to distribute methamphetamine or cocaine, see 21 U.S.C.

§§ 841(a)(1), 846; three counts of distributing and possessing with intent to distribute

methamphetamine, see § 841(a)(1); one count of distributing and possessing with intent

to distribute cocaine or methamphetamine, see id.; and three counts of using a

communication facility in furtherance of a drug-trafficking crime, see 21 U.S.C. § 843(b).

       On appeal, Loya-Ramirez argues he is entitled to a new trial based on two

statements the government made during the rebuttal portion of its closing argument. But



       *
        This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
Loya-Ramirez didn’t object to these comments below. Thus, we may reverse only if he

demonstrates these comments satisfy our plain-error test. He fails to make this showing.

Although the government concedes its first statement was improper, Loya-Ramirez fails

to establish this error affected his substantial rights. And the government’s second

comment wasn’t error at all. Instead, it was a permissible response to statements that

defense counsel made during his closing argument. Accordingly, we affirm.

                                       Background

       The government indicted Loya-Ramirez after law enforcement stopped a vehicle

he was driving and discovered cocaine and methamphetamine in a compartment hidden

behind the vehicle’s glove box. During Loya-Ramirez’s ensuing seven-day jury trial, the

government presented compelling evidence of his involvement in the underlying drug-

trafficking conspiracy. This evidence included (1) surveillance video and testimony

demonstrating that Loya-Ramirez was present when another member of the conspiracy

created the vehicle’s hidden compartment; (2) recordings of phone calls between Loya-

Ramirez and other members of the conspiracy; (3) text messages from Loya-Ramirez in

which he discussed collecting drug money and delivering drugs; and (4) the testimony of

four of Loya-Ramirez’s coconspirators, who all described Loya-Ramirez’s considerable

involvement in the drug trade.

       Nevertheless, the government didn’t call all the remaining members of the

conspiracy to testify at trial. And defense counsel pointed out as much during his closing

argument. In particular, defense counsel complained that although the government relied



                                             2
in part on a phone call between Loya-Ramirez and coconspirator Juan Carlos Amaya, the

government “didn’t get [Amaya] to come and testify.” App. vol. 2, 344.

       In rebuttal, the government conceded that the jury didn’t “hear[] from” all “28

people in the conspiracy.” Id. at 355. But the government then attempted to explain why

its failure to call all 28 coconspirators—including Amaya—wasn’t indicative of any

weaknesses in the government’s case. Specifically, the government stated, “There’s many

reasons a person may not cooperate [with the government]. They may exercise their right

to trial. They may simply be guilty and get acceptance of responsibility. They may fear

having to testify.” Id. at 355–56. Notably, defense counsel didn’t object to these remarks.

Nor did defense counsel object when the government subsequently asserted, in the

penultimate statement of its rebuttal argument, “Ladies and gentlemen, this defendant is

guilty, and everybody in the courtroom knows it.” Id. at 358.

       The jury found Loya-Ramirez not guilty on one count of the indictment but

convicted him on the remaining nine charges. The district court then sentenced Loya-

Ramirez to life in prison. Loya-Ramirez now appeals.

                                         Analysis

       On appeal, Loya-Ramirez argues the government committed prosecutorial

misconduct by (1) opining, “Ladies and gentlemen, this defendant is guilty, and

everybody in the courtroom knows it” and (2) stating, “You haven’t heard from

everybody in the conspiracy. There’s [sic] 28 people in the conspiracy.” Id. at 355, 358.

Loya-Ramirez asserts that the first of these two remarks improperly expressed a personal

opinion about his guilt and also commented on facts not in evidence. See United States v.

                                             3
Young, 470 U.S. 1, 16–18 (1985) (noting that prosecutors must refrain from expressing

their “personal opinion[s] concerning the guilt of the accused”); United States v. Latimer,

511 F.2d 498, 503 (10th Cir. 1975) (concluding that prosecutor “violated [a] fundamental

rule[]” by making remarks that “went outside the record”). And Loya-Ramirez contends

the government’s second statement constitutes an impermissible comment on his decision

to exercise his Fifth Amendment rights. See Baxter v. Palmigiano, 425 U.S. 308, 319

(1976) (explaining that prosecutors must refrain from suggesting jury “may treat the

defendant’s silence as substantive evidence of guilt”).

       The government candidly concedes that its first comment was indeed improper.

See Young, 470 U.S. at 16–18. But that doesn’t mean we must—or even may—reverse

Loya-Ramirez’s convictions. On the contrary, as Loya-Ramirez recognizes, his failure to

object to the government’s remark triggers plain-error review. See United States v.

Anaya, 727 F.3d 1043, 1053 (10th Cir. 2013). And under our test for plain error, it’s not

enough for Loya-Ramirez to demonstrate that the government’s statement was improper,

or even that its statement was “plainly” so. Id. (quoting United States v. Fleming, 667

F.3d 1098, 1103 (10th Cir. 2011)); see also United States v. Taylor, 514 F.3d 1092, 1100

(10th Cir. 2008) (noting that error is only “plain” for purposes of plain-error test if it is

“contrary to well-settled law”). Instead, in addition to showing that (1) an error occurred

and (2) the error was plain, Loya-Ramirez must also show that (3) the error affected his

substantial rights, i.e., there exists “a reasonable probability that, but for the error

claimed, the result of the proceeding would have been different,” and (4) the error

“seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.”

                                                4
Fleming, 667 F.3d at 1103, 1106 (first quoting United States v. Mendoza, 543 F.3d 1186,

1194 (10th Cir. 2008); then quoting Taylor, 514 F.3d at 1100).

       Critically, when a defendant lodges a timely objection to a prosecutor’s remarks, it

is the government that “bears the burden of proving [the remark was] harmless beyond a

reasonable doubt.” Id. at 1103. But when a defendant fails to make such an objection—as

Loya-Ramirez did here—he or she bears the burden of showing prejudice under the third

prong of the plain-error test. See id. Yet Loya-Ramirez makes no attempt to shoulder that

burden. Instead, he suggests that the government’s statement is so egregiously improper

that we should reverse without regard for whether that error resulted in actual prejudice.

       This we cannot do. See Young, 470 U.S. at 7, 12 (noting that to determine whether

prosecutor’s improper statements warrant reversal under plain-error test, reviewing court

must “examine[]” those statements “within the context of the trial to determine whether

the prosecutor’s behavior amounted to prejudicial error”). Instead, we may reverse only if

Loya-Ramirez shows that, in light of “the entire record,” the government’s improper

statement prejudiced him. Id. at 15 & n.12, 16 (citing Fed. R. Crim. P. 52(b)); see also

United States v. Christy, 916 F.3d 814, 824 (10th Cir. 2019) (explaining that to assess

prejudice in this context, we “must weigh any improper comments against the strength of

the evidence against the defendant”).

       Here, Loya-Ramirez fails to make (or even attempt to make) a showing of actual

prejudice in his opening brief. Thus, he has waived any argument on this point. See Fed.

R. App. P. 28(a)(8)(A); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)

(noting we routinely refuse to consider arguments that fail to meet Rule 28’s

                                             5
requirements). What’s more, the government’s response brief both identified the

deficiencies in Loya-Ramirez’s opening brief and mounted a compelling argument for

finding that in light of the overwhelming evidence of Loya-Ramirez’s guilt, its improper

comment was harmless. Even then, Loya-Ramirez failed to file a reply brief.

Accordingly, he has likewise “waive[d], as a practical matter anyway,” any non-obvious

responses to the government’s harmlessness analysis. Hardy v. City Optical Inc., 39 F.3d

765, 771 (7th Cir. 1994).

       Further, even if we wished to overlook Loya-Ramirez’s deficient briefing and sua

sponte review the entire record to determine whether the government’s improper

comment affected his substantial rights, Loya-Ramirez’s failure to comply with this

court’s local rules would frustrate that endeavor; he has provided us with transcripts from

only two days of his seven-day jury trial. See 10th Cir. R. 10.4(A) (“Counsel must

designate a record on appeal . . . that is sufficient for considering and deciding the

appellate issues.”); id. at 10.4(B) (“When the party asserting an issue fails to provide a

record or appendix sufficient for considering that issue, the court may decline to consider

it.”); United States v. Randall, 661 F.3d 1291, 1297 n.2 (10th Cir. 2011) (noting that

appellant’s failure to designate sufficient record is “grounds for our refusal to consider”

appellant’s arguments).1


       1
         The government eventually filed a supplemental appendix containing the
remaining trial transcripts. But this didn’t relieve Loya-Ramirez of his duty to
comply with Rule 10.4(A). Nor does it render inapplicable Rule 10.4(B). See Lincoln
v. BNSF Ry. Co., 900 F.3d 1166, 1190 (10th Cir. 2018) (“While we are permitted to
look at the record as a whole, including the supplemental appendix submitted by
[appellee], nothing requires us to look past the appendix submitted by [a]ppellants.”).
                                              6
        In short, “when addressing plain error, a reviewing court cannot properly evaluate

a case except by viewing such a claim against the entire record.” Young, 470 U.S. at 16

(emphasis added). Indeed, despite Loya-Ramirez’s assertions to the contrary, “[i]t is

simply not possible for an appellate court to assess the seriousness of the claimed error by

any other means.” Id. But here, Loya-Ramirez neither provides us with “the entire

record” nor makes any meaningful prejudice argument based on the limited record he

does provide. Id. Thus, we could decline to address whether the government’s improper

comment expressing an opinion about his guilt warrants reversal under our plain-error

test. See 10th Cir. R. 10.4(A), (B); Randall, 661 F.3d at 1297 n.2; Bronson, 500 F.3d at

1104.

        Nevertheless, because the government has provided us with both the record we

need to resolve this waived argument and an adequate analysis of that record, we elect

instead to consider Loya-Ramirez’s plain-error argument on the merits. See United States

v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir. 2014) (noting our discretion to resolve

waived arguments). To support its argument as to the third prong of the plain-error

analysis, the government points out that we recently concluded a defendant failed to show

the government’s improper comments affected her substantial rights where (1) “the

inculpatory evidence against [the defendant] was overwhelming”; (2) the district court

implicitly “instructed the jurors to disregard the prosecutor’s comments” by, e.g.,

explaining the attorneys’ statements and arguments weren’t evidence; (3) the jury

acquitted the defendant on some counts, thus indicating it followed the court’s

instructions and fairly judged the evidence; and (4) the prosecutor made the improper

                                             7
comments in the context of a “six-day trial [that] produced approximately 1,000 pages of

transcribed testimony from 14 witnesses.” Christy, 916 F.3d at 840–42.

       The same four factors compel the same result here. First, the evidence against

Loya-Ramirez was overwhelming: in addition to the fact that law enforcement discovered

illegal drugs in a vehicle he was driving, the government also presented evidence of his

guilt in the form of surveillance videos, phone calls, text messages, and the testimony of

four of his coconspirators. Further, the district court implicitly instructed the jury to

disregard the government’s improper comment by stating, “[W]hat these attorneys say to

you and show to you during their respective closing statements or final arguments . . . is

not evidence and may not be used or considered by you as such.” App. vol. 2, 309.

Relatedly, the fact that the jury acquitted Loya-Ramirez of one count of the indictment

indicates the jury followed this instruction, “pa[id] attention” to the evidence, and

“weighed the facts” before it in reaching its verdict. Christy, 916 F.3d at 842. Finally, the

government made this improper comment in the context of a seven-day jury trial that

yielded hundreds of pages of testimony from more than a dozen witnesses. To be clear,

“we do not condone” the government’s improper comment. Id. But because Loya-

Ramirez fails to satisfy the third prong of the plain-error test, the government’s first

comment doesn’t warrant reversal. See id.

       Neither does the government’s second comment—i.e., its statement that the jury

didn’t “hear[] from” all “28 people in the conspiracy.” App. vol. 2, 355. Again, Loya-

Ramirez concedes this argument is subject to plain-error review. And again, Loya-

Ramirez has waived any argument that this statement affected his substantial rights, both

                                               8
by failing to make any meaningful prejudice argument and by failing to provide us with

an adequate record on appeal. Nevertheless, we exercise our discretion to reach the merits

of this waived argument as well. See Black, 773 F.3d at 1115 n.2.

       Loya-Ramirez contends that by pointing out the jury didn’t hear from every

member of the conspiracy at trial, the government impermissibly drew the jury’s

attention to the fact that Loya-Ramirez himself declined to testify. See Baxter, 425 U.S. at

319 (noting that prosecutors must refrain from suggesting jury may “treat the defendant’s

silence as substantive evidence of guilt”). But as the government argues, this remark

wasn’t an improper comment on Loya-Ramirez’s silence. Rather, it was a wholly

permissible response to defense counsel’s complaint that the government “didn’t get

[Amaya] to come and testify.” App. vol. 2, 344; see also United States v. Ivory, 532 F.3d

1095, 1100 (10th Cir. 2008) (“If a statement by the prosecutor that might otherwise be

construed as a comment on a defendant’s failure to testify is a fair response to an

argument by a defendant, we are unlikely to find error.”). Because Loya-Ramirez fails

to demonstrate this comment constitutes error, let alone plain error, we decline to

reverse on this basis.

                                        Conclusion

       The government’s first comment was indeed improper. But because Loya-Ramirez

fails to demonstrate this comment affected his substantial rights, he is not entitled to

reversal under our plain-error test. And Loya-Ramirez fails to demonstrate that the




                                              9
government’s second comment amounted to error at all. Accordingly, we affirm.


                                          Entered for the Court


                                          Nancy L. Moritz
                                          Circuit Judge




                                         10
