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

                                                 FILED
                                                                          February 23, 2009
                                     No. 07-41251
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

v.

DIANA GONZALEZ,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               No. 5:07-CR-479-ALL




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Diana Gonzalez appeals her jury conviction of conspiracy to possess with
intent to distribute in excess of five kilograms of cocaine and importation of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 07-41251

excess of five kilograms of cocaine. She argues that the district court erred in
making various comments, during the jury instructions, that the only real issue
was whether she knew that the van she was driving contained a controlled sub-
stance. She claims this is a structural error that requires reversal.
      Gonzalez was stopped at a border checkpoint at Bridge 2 in Laredo, Texas,
when she entered the United States from Mexico driving a van. A border patrol
officer referred her to the secondary inspection area, because Gonzalez appeared
nervous and had glanced toward the ceiling of the van. In the secondary inspec-
tion area, a canine alerted to all four corners of the roof. An x-ray revealed an
anomaly in the roof of the van. An officer drilled into the roof and discovered for-
ty packages of cocaine having a total weight of forty-eight kilograms, hidden in
a very sophisticated manner in a compartment in the top rear portion of the roof.
      Incorrect jury instructions are generally not considered structural errors.
Hedgpeth v. Pulido, 129 S. Ct. 530, 532 (2008) (holding that instructional errors
that do not “categorically ‘vitiat[e] all the jury’s findings’” are trial errors as to
which harmless error analysis applies, not structural errors (emphasis and inter-
nal quotation marks omitted) (quoting Neder v. United States, 527 U.S. 1, 11
(1999))). We apply the plain error standard of review in such cases in which the
defendant did not object to the district court’s comments during jury instruc-
tions. United States v. Inocencio, 40 F.3d 716, 728-29 (5th Cir. 1994); United
States v. Pool, 660 F.2d 547, 559 (Former 5th Cir. Nov. 1981); see United States
v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009).
      To establish plain error, the appellant must show an error that is clear or
obvious and that affects his substantial rights. Id. If the appellant makes such
a showing, this court has the discretion to correct the error, but only if it serious-
ly affects the fairness, integrity, or public reputation of judicial proceedings. Id.
      Gonzalez has not shown that the district court’s comments, viewed as a
whole, were sufficiently quantitatively or qualitatively substantial to pose any
threat to the fairness of her trial. See United States v. Bermea, 30 F.3d 1539,

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                                  No. 07-41251

1569 (5th Cir. 1994); see also Inocencio, 40 F.3d at 729-31. The comments ap-
pear to be analogous to those at issue in Inocencio, in which this court found no
error, because the comments reflected the evidence in the record, and the district
court gave curative instructions. See Inocencio, 40 F.3d at 729-31.
      The government and defense counsel argued in opening and closing argu-
ments that the central issue is whether Gonzalez knew that the cocaine was hid-
den in the van. The court’s comments were based on the evidence presented at
trial and referred to the same evidence mentioned in the parties’ closing argu-
ments. The court did not state that the jury should find that Gonzalez knew the
cocaine was there or should find her guilty. Further, the court gave general cur-
ative instructions that the jury should base its decision on the law and the evi-
dence and not on anything the court had said or done; that the jury was the sole
judge of the witnesses’ credibility; that the government had to prove that Gonzal-
ez was guilty beyond a reasonable doubt; and that the government had to prove
that Gonzalez knew the substance was there and that it was a controlled sub-
stance.
      The curative instructions operate against a finding of a constitutional vio-
lation. See United States v. Lankford, 196 F.3d 563, 573 (5th Cir. 1999). Juries
are presumed to follow their instructions. See Zafiro v. United States, 506 U.S.
534, 540 (1993). Gonzalez has not shown plain error. See Inocencio, 40 F.3d at
729-31; Bermea, 30 F.3d at 1569.
      AFFIRMED.




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