     Case: 12-50141       Document: 00512136334         Page: 1     Date Filed: 02/06/2013




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

                                                                            FILED
                                                                         February 6, 2013
                                     No. 12-50141
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LUIS URIAS-CRUZ; HORACIO JAVIER RAMOS-CONTRERAS,

                                                  Defendants-Appellants


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 4:11-CR-295-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Luis Urias-Cruz (Urias) and Horacio Javier Ramos-Contreras (Ramos)
were convicted of aiding and abetting and possessing with intent to distribute
50 kilograms or more but less than 100 kilograms of marijuana. See 21 U.S.C.
§ 841(a)(1); 18 U.S.C. § 2. Urias appeals his conviction. Ramos appeals his
sentence of 42 months of imprisonment. We affirm both judgments.
       We reject Urias’s claim that the district court abused its discretion when
it excluded the opinion testimony of Dr. Tony Payan, testimony that Urias

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50141

maintained would support his defense that kidnappers had forced him to carry
the drugs across the border. See General Electric Co. v. Joiner, 522 U.S. 136, 142
(1997); Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997). Before an
expert is permitted to offer opinion testimony, “the trial judge must determine
whether the . . . testimony is both reliable and relevant.” Burleson v. Tex. Dep’t
of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004) . Because Urias fails to
show that Payan’s testimony was relevant, we do not reach the question whether
Payan’s testimony was reliable. See United States v. Rodriguez, 523 F.3d 519,
525 (5th Cir. 2008); United States v. Ho, 311 F.3d 589, 602 n.12 (5th Cir. 2002).
      Both Urias and Ramos testified that they at no time had any opportunity
to escape from the men they say kidnapped them. Thus, Urias and Ramos could
not have sought Mexican police assistance to overcome any duress, and so it does
not matter that—as Payan would have opined—a pervasive distrust of the police
might have made Urias afraid to seek police help. See FED. R. EVID. 401; United
States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998). Additionally, Payan’s
opinion concerning the incidence of coerced drug activity originating in Mexico
would not help to establish that it was more probable than not that Urias had
acted under duress. See FED. R. EVID. 401; Burleson, 393 F.3d at 587. Payan
testified in his Daubert hearing that most people who carry others’ drugs across
the border are compensated for doing so rather than coerced to do so. Also,
Urias now concedes that his jurors were likely well aware of the violence in
Mexico; thus, Payan’s knowledge of this topic was not specialized to assist
resolution of this case by a jury. See FED. R. EVID. 702.
      We reject also Ramos’s claim that the district court plainly erred when it
failed to assign a minor role adjustment to Ramos’s offense level. Ramos must
first show on plain error review a forfeited error it is clear or obvious. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he does, and if he shows
also that the error affected his substantial rights, we have the discretion “to
remedy the error . . . if the error seriously affects the fairness, integrity or public

                                          2
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                                 No. 12-50141

reputation of judicial proceedings.” Id. (internal quotation marks, bracketing,
and citation omitted). “[B]ecause he cannot demonstrate any error at all,”
however, Ramos cannot prevail on plain error review.           United States v.
Teuschler, 689 F.3d 397, 400 (5th Cir. 2012).
      A defendant’s role in the offense turns on culpability, not on status as a
courier. United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989). To show
that he is entitled to more lenient treatment, Ramos must point to evidence that
he was among the least culpable in the offense. See U.S.S.G. § 3B1.2 comment.
(n.2); United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995). Ramos offered
no evidence that he was less culpable than the others in his group who, like him,
carried drugs over the border in backpacks. Additionally, there is no merit to
the suggestion that Ramos was penalized for going to trial. The sentencing
transcript makes clear that the district court’s comment about Ramos’s going to
trial was not about the choice to go to trial but merely about the fact of having
done so—the court was simply refreshing its recollection of the facts of Ramos’s
case, not expressing any vindictive sentiment.
      AFFIRMED.




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