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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                    No. 16-40560                           FILED
                                                                       July 10, 2017

UNITED STATES OF AMERICA,
                                                                      Lyle W. Cayce
                                                                           Clerk

             Plaintiff - Appellee

v.

YUDELUIS ALBERTO JIMENEZ-ELVIREZ,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before SMITH, PRADO, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Yudeluis Alberto Jimenez-Elvirez was convicted by a jury in the
Southern District of Texas of one count of conspiracy to transport and attempt
to transport an undocumented alien within the United States and five counts
of aiding and abetting the transport and attempted transport of an
undocumented alien within the United States for commercial advantage and
private financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii),
(a)(1)(A)(v)(I)–(II). The district court sentenced Jimenez-Elvirez to concurrent
sentences of 97 months on each count, followed by concurrent three-year terms
of supervised release.
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                                 No. 16-40560
      Jimenez-Elvirez appeals his convictions and sentences on the following
grounds: (1) the evidence is insufficient to support his convictions; (2) the
district court erroneously admitted evidence of a prior illegal transport offense
Jimenez-Elvirez committed on June 30, 2015; (3) the district court erroneously
imposed a sentence enhancement under U.S.S.G. § 2L.1(b)(3)(A) for
committing the instant offense after sustaining a conviction for a prior felony
immigration offense because the predicate conviction was not final; (4) the
district court improperly “triple counted” the prior felony immigration
conviction for purposes of calculating Jimenez-Elvirez’s Guidelines range; and
(5) the prosecutor impermissibly bolstered the testimony of one of the
Government’s witnesses during closing argument. For the following reasons,
we AFFIRM.
                            I.    BACKGROUND
      On the night of October 7, 2015, United States Border Patrol (“USBP”)
Agents Robert Bomar, Felipe Martinez, and Esteban Martinez (“Martinez”)
were manning the USBP checkpoint near Freer, Texas. At approximately
10:35 pm, a black 18-wheeler tractor truck hauling a white trailer pulled up to
the checkpoint, followed immediately by a black Chevrolet Tahoe. The tractor,
the trailer, and the Tahoe all had Florida license plates. The words “Iron Horse
Logistics, Inc.” appeared on the side of the tractor. Bomar testified that there
was nothing initially suspicious or unusual about either vehicle or their
drivers.
      Bomar conducted an immigration check of the tractor-trailer and its
driver, Ricardo Gallo, and, upon confirming Gallo’s lawful presence in the
United States, let him proceed. The agents then checked the Tahoe, which was
occupied only by Jimenez-Elvirez. As the Tahoe approached the inspection
area, the electronic license plate reader (“LPR”), operated by Felipe Martinez,
alerted that criminal activity or abnormal travel patterns had been associated
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                                       No. 16-40560
with the Tahoe’s license plate. Specifically, a vehicle bearing Florida plate #
9546CM had been used to smuggle 17 illegal aliens through a USBP checkpoint
near Laredo, Texas in July 2015. Upon further inspection, however, the agents
verified that the Tahoe’s license plate did not match the alert. Given the quick
procession of the tractor-trailer and the Tahoe past the LPR, the agents
suspected that the alert was in fact a “delayed hit” on the trailer. A review of
the LPR confirmed that Florida plate # 9546CM belonged to a trailer co-owned
by Gallo and Iron Horse Logistics.
       Martinez and Felipe Martinez set off in an unmarked USBP car to
intercept the tractor-trailer and verify its license plate.              After driving for
approximately 10 minutes, Martinez observed the Tahoe following roughly five
feet behind the tractor-trailer. The Tahoe did not attempt to pass the tractor-
trailer, despite the absence of oncoming traffic, which Martinez noted was
inadvisable given the danger of riding so close behind a tractor-trailer.
Martinez twice attempted to pass the Tahoe in the oncoming lane, but the
Tahoe would not yield. He also flashed his bright lights at the Tahoe, but the
Tahoe did not react.        Martinez opined that although he was not sure of
Jimenez-Elvirez’s level of visibility, he should have been able to discern that
the USBP truck was an official government vehicle. 1
       Based on his experience, Martinez concluded that the behavior of the
drivers of the tractor-trailer and the Tahoe—travelling the same direction at
the same speed in close proximity and not allowing other vehicles to pass—
indicated that they were riding “in tandem.” He explained to the jury that
when riding “in tandem,” the front, or “load,” vehicle will often contain



       1 Martinez testified that although the USBP truck was unmarked, it had an interior
emergency light bar in the windshield that was visible from the outside even at night and a
reflective steel K-9 cage that could “giv[e] off the impression” that it was a law enforcement
vehicle and not a “regular” truck.
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narcotics or illegal aliens, while the driver of the rear, or “scout,” vehicle will
seek to draw law enforcement attention away from the “load” vehicle by
committing traffic offenses.    Martinez suspected that Jimenez-Elvirez was
acting as a “scout” for the tractor-trailer and attempting to impede his
investigation.
      Martinez activated his emergency lights, and the driver of the Tahoe
stopped and pulled over in a “very sudden” manner. Martinez noted that such
behavior is typical of “scout” vehicle drivers, who will sometimes brake
suddenly in order to induce a collision with pursuing law enforcement, thus
allowing the “load” vehicle to get away.        While USBP Agent Luis Pena
conducted the stop of the Tahoe, Martinez pursued and stopped the tractor-
trailer. Inside the trailer he discovered 27 undocumented aliens.
      At trial, five of the people found inside the trailer—Sergio Maya, Raquel
Perez-Lopez, Ana Garduza-Lazaro, Alejandra Balderas-Lopez, and Basilia
Maldonado-Aguilar—testified that they were Mexican or Guatemalan citizens
and were in the United States illegally.           Maya, Garduza-Lazaro, and
Maldonado-Aguilar also testified that either they or their families had paid
between $1,200 and $2,000 in Mexico for their transportation into and through
the United States. All of the aliens testified that it was too dark to discern the
identity of anyone present at the time they entered the trailer other than the
driver of the tractor truck. None of the aliens identified Jimenez-Elvirez.
      Department of Homeland Security special agent Christopher Durkee
also testified regarding his investigation and arrest of Jimenez-Elvirez on June
30, 2015, for illegally transporting 17 aliens near Laredo, Texas (the “June 30
offense”). Jimenez-Elvirez pleaded guilty to this offense on October 7, 2015
(the same day he committed the instant offense). Durkee noted that Jimenez-
Elvirez had transported the aliens in the same black tractor-trailer belonging
to Iron Horse Logistics and registered to Gallo, which Gallo was driving
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                                   No. 16-40560
through the Freer checkpoint on October 7.          At trial, the district court
permitted the Government to introduce evidence of the June 30 offense to rebut
Jimenez-Elvirez’s claims that he was merely present at the scene. The district
court admitted the evidence over Jimenez-Elvirez’s objection, finding that it
was part of the same conspiracy or, alternatively, that it was relevant under
Rule 404(b) of the Federal Rules of Evidence to show motive, intent, absence
of mistake, or lack of accident.
      The jury convicted Jimenez-Elvirez on all counts.         The presentence
report (“PSR”) calculated an advisory Guidelines range of 78 to 97 months of
imprisonment, based on, inter alia, a six-level enhancement, under U.S.S.G.
§ 2L1.1(b)(2)(B), because Jimenez-Elvirez transported between 25 and 99
aliens; a two-level enhancement, under § 2L1.1(b)(3)(A), because he committed
the instant offense after his conviction for a prior felony immigration offense;
and a three-level enhancement, under U.S.S.G. § 3C1.3, because he committed
the instant offense while on supervised release following his guilty plea for the
June 30 offense. Adopting the PSR, the district court imposed concurrent
sentences of 97 months on each count, followed by concurrent three-year terms
of supervised release on each count. Jimenez-Elvirez timely appealed.
                             II.    DISCUSSION
      Jimenez-Elvirez argues that (1) the evidence is insufficient to support
his convictions on the conspiracy count and each of the five aiding and abetting
counts; (2) the district court erroneously admitted evidence of the June 30
offense because it was irrelevant and highly prejudicial extraneous conduct;
(3) the district court erroneously imposed a sentence enhancement pursuant to
the recidivist provision, U.S.S.G. § 2L.1(b)(3)(A), because it was based on his
conviction for the June 30 offense, which was not yet final on the date he
committed the instant offense; (4) the district court improperly “triple counted”
the June 30 conviction for purposes of calculating Jimenez-Elvirez’s Guidelines
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                                 No. 16-40560
range; and (5) the prosecutor impermissibly bolstered Martinez’s testimony
during closing argument. We address each claim in turn.
      A. Sufficiency of the Evidence
      Jimenez-Elvirez challenges the sufficiency of the evidence on all counts,
arguing that the evidence established only his mere presence at the scene of
the crime.    Because he properly preserved his challenge by moving for a
judgment of acquittal after the Government rested, which was also at the close
of all evidence, we review the denial of his motion for judgment of acquittal de
novo. United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003). In conducting
our review,
      We will affirm the jury’s verdict if a reasonable trier of fact could
      conclude from the evidence that the elements of the offense were
      established beyond a reasonable doubt, viewing the evidence in the
      light most favorable to the verdict and drawing all reasonable
      inferences from the evidence to support the verdict. Our review of
      the sufficiency of the evidence does not include a review of the
      weight of the evidence or of the credibility of the witnesses.
Id. (quoting United States v. Myers, 104 F.3d 76, 78 (5th Cir. 1997)).
              1. The Conspiracy Count
      To convict a defendant of conspiracy to transport an undocumented alien
under 8 U.S.C. § 1324(a)(1)(A)(v)(I), the Government must prove that the
defendant: (1) agreed with one or more persons (2) to transport an
undocumented alien inside the United States (3) in furtherance of his unlawful
presence (4) knowingly or in reckless disregard of the fact that the alien’s
presence in the United States was unlawful. United States v. Chon, 713 F.3d
812, 818 (5th Cir. 2013). The Government must prove that “each conspirator
knew of, intended to join, and voluntarily participated in the conspiracy.” Id.
The elements of conspiracy may be established solely by circumstantial
evidence, including “the presence, association, and concerted action of the
defendant with others.” United States v. Thomas, 690 F.3d 358, 366 (5th Cir.
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2012); United States v. Bieganowski, 313 F.3d 264, 277 (5th Cir. 2002).
“Although mere presence at the scene of the crime or close association with a
co-conspirator alone will not support an inference of participation in a
conspiracy, presence is a significant factor to be considered within the context
of the circumstances under which it occurs.” United States v. Medina, 887 F.2d
528, 531 (5th Cir. 1989) (citation omitted).
      Jimenez-Elvirez argues that none of the material witnesses identified
him as a participant in the conspiracy and that the Government offered no
other evidence, such as phone calls, documents, or money, to prove his
participation. Thus, he claims, the evidence at trial established only his mere
presence at the scene of the crime. We disagree.
      Although the evidence tying Jimenez-Elvirez to the conspiracy is
circumstantial, reviewed cumulatively in the light most favorable to the
verdict, it is sufficient to support a finding beyond a reasonable doubt that a
conspiracy existed, that Jimenez-Elvirez knew of the conspiracy, and that he
voluntarily participated in it. See id. Agent Martinez explained, based on his
professional experience, that Jimenez-Elvirez’s behavior was typical of
someone who was acting in concert with another to commit a smuggling offense
by serving as a “scout.”    Specifically, Martinez testified that he observed
Jimenez-Elvirez following only five feet behind the tractor-trailer and that he
did not attempt to pass it despite the road being clear, which was odd, given
the danger in following that closely behind. Further, Martinez tried to pass
the Tahoe twice, but Jimenez-Elvirez would not let him pass. After Martinez
turned on his flashing lights, the Tahoe suddenly pulled over, which he
testified was typical of the way in which scout vehicle drivers attempt to force
collisions with pursuing law enforcement to enable the load vehicle to get away.
      Jimenez-Elvirez contends that Martinez’s suspicions were speculative
and that his behavior can be innocently explained away based on safety
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concerns. But the jury was free to give weight to Martinez’s experience-based
testimony that Jimenez-Elvirez’s actions were particularly suspicious.                  See
United States v. Mendoza, 522 F.3d 482, 489 (5th Cir. 2008). Further, there
was evidence that Jimenez-Elvirez recently had been arrested for transporting
17 undocumented aliens in the same tractor-trailer Gallo was driving on the
night of October 7. This evidence, taken together, sufficiently supports an
inference that Jimenez-Elvirez knew about the illegal aliens in Gallo’s tractor-
trailer, was acting in concert with him, and was not merely fortuitously present
at the scene. 2
              2. The Aiding and Abetting Counts
       To prove that Jimenez-Elvirez aided and abetted the transport of an
undocumented alien, the Government was required to show that he
“associate[d] with the criminal venture, participate[d] in it and [sought] by his
actions to make the venture succeed.” United States v. Villenueva, 408 F.3d
193, 201 (5th Cir. 2005). “The evidence supporting a conspiracy conviction is
generally sufficient to support an aiding and abetting conviction as well.”
United States v. Ibarra-Zelaya, 465 F.3d 596, 603 (5th Cir. 2006) (quoting
United States v. Gonzales, 121 F.3d 928, 936 (5th Cir. 1997)).
       Jimenez-Elvirez levels the same argument against his convictions for
aiding and abetting as he does against his conspiracy conviction. He contends
that the jury could not have relied on Martinez’s testimony to support its




       2 The cases Jimenez-Elvirez relies upon to show that the evidence is insufficient are
inapposite. Unlike United States v. Maltos, 985 F.2d 743, 747–48 (5th Cir. 1992), and United
States v. Gardea Carrasco, 830 F.2d 41, 45 (5th Cir. 1987), in which the evidence established
no more than the defendant’s association with a co-conspirator or mere presence at the scene
of the crime, a rational jury could infer from Jimenez-Elvirez’s suspicious behavior, coupled
with his past unlawful conduct employing the same modus operandi used in the instant case,
that he was a knowing and voluntary participant in the conspiracy.

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verdict, considering the lack of physical or documentary evidence linking
Jimenez-Elvirez to the crime.
      His argument again fails to persuade.         As previously discussed,
assessments regarding the credibility of witnesses and the weight of the
evidence are the jury’s prerogative, United States v. Garcia, 995 F.2d 556, 561
(5th Cir. 1993), and “the jury is free to choose among reasonable constructions
of the evidence,” United States v. Meza, 701 F.3d 411, 422–23 (5th Cir. 2012).
The jury was entitled to credit Martinez’s testimony that Jimenez-Elvirez’s
behavior was consistent with someone who was acting as a scout for Gallo, who
was transporting the 27 undocumented aliens found in his tractor-trailer—
testimony which was bolstered by the evidence that Jimenez-Elvirez used the
same tractor-trailer some few months earlier to commit the identical offense.
A rational jury could conclude that by acting as a scout to draw law
enforcement’s attention away from the load vehicle transporting illegal aliens,
Jimenez-Elvirez “associate[d] with the criminal venture, participate[d] in it
and [sought] by his actions to make the venture succeed.” Villenueva, 408 F.3d
at 201.
      B. Admission of Evidence of the June 30 Offense
      Jimenez-Elvirez next argues that the district court committed reversible
error by admitting evidence of his arrest and plea of guilty to illegally
transporting 17 undocumented aliens on June 30, 2015. Before the trial,
Jimenez-Elvirez had filed a motion in limine to exclude this evidence. The
district court denied the motion on the grounds that the June 30 offense was
part of the same conspiracy or, alternatively, that it was relevant under Rule
404(b) of the Federal Rules of Evidence to show motive, intent, absence of
mistake, or lack of accident. On appeal, Jimenez-Elvirez claims that evidence
of the June 30 offense was not intrinsic to the charged conspiracy, was
irrelevant to the charges against him and offered for no other purpose than to
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prove improper character, and, even if it was relevant, its probative value was
substantially outweighed by its prejudicial effect.
      “Generally, we review a trial court’s decision to admit evidence for abuse
of discretion,” United States v. Akpan, 407 F.3d 360, 373 (5th Cir. 2005),
although we employ a heightened review in criminal cases, United States v.
Pompa, 434 F.3d 800, 805 (5th Cir. 2005). “Intrinsic evidence is generally
admissible, and its admission is not subject to rule 404(b).” United States v.
Freeman, 434 F.3d 369, 374 (5th Cir. 2005). Evidence is considered intrinsic
“when the evidence of the other act and the evidence of the crime charged are
‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ or
the other acts were ‘necessary preliminaries’ to the crime charged.”            Id.
(quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990)).
      We are skeptical that the district court had a sufficient basis to find
evidence of the June 30 offense intrinsic to the crimes for which Jimenez-
Elvirez stood trial.    Other than the use of the same tractor-trailer, the
Government offered no evidence to link the June 30 offense with the October 7
alien smuggling conspiracy. Nevertheless, we agree with the district court that
the evidence was admissible under Rule 404(b) to prove motive, intent, absence
of mistake, or lack of accident.
      When evidence of another act is extrinsic, its admissibility is subject to
Rule 404(b). Under Rule 404(b), evidence of prior crimes, wrongs, or other acts
is not admissible to prove the defendant’s character in order to show that the
defendant acted in conformity with that character on the particular occasion
at issue. Fed. R. Evid. 404(b)(1). Such evidence, however, “may be admissible
for another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.”            Id.
404(b)(2).


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                                 No. 16-40560
      We use a two-step test to determine admissibility under Rule 404(b).
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). First,
we determine whether the evidence “is relevant to an issue other than the
defendant’s character.” Id. “Second, the evidence must possess probative
value that is not substantially outweighed by its undue prejudice and must
meet the other requirements of [Federal Rule of Evidence] 403.” Id.
      “The relevance of extrinsic act evidence ‘is a function of its similarity to
the offense charged.’” United States v. Cockrell, 587 F.3d 674, 678 (5th Cir.
2009) (quoting Beechum, 582 F.2d at 911).         Jimenez-Elvirez claims that
evidence of the June 30 offense is irrelevant because it has no common
characteristic to the charged conspiracy.     This argument strains common
sense. The June 30 and October 7 offenses are identical: the illegal transport
of undocumented aliens into the country. Moreover, the identical means of
transport were used.       Jimenez-Elvirez pleaded guilty to transporting
undocumented aliens on June 30, 2015 in the very same tractor-trailer Gallo
drove on October 7, which was co-owned by Gallo and Iron Horse Logistics.
Finally, “[w]here, as here, a defendant enters a plea of not guilty in a
conspiracy case, the first prong of the Beechum test is satisfied.” Id. That is
because “[t]he mere entry of a not guilty plea in a conspiracy case raises the
issue of intent sufficiently to justify the admissibility of extrinsic offense
evidence.” United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996).
Accordingly, the first prong of the Beechum test is satisfied.
      As for the second prong, although we have recognized that “the more
closely the extrinsic offense resembles the charged offense, the greater the
prejudice to the defendant,” Cockrell, 587 F.3d at 679, we also have emphasized
that the probative value of extrinsic evidence of similar crimes is relatively
great when the defendant “based his defense on a claim that he was merely in
the wrong place at the wrong time,” United States v. Hernandez-Guevara, 162
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F.3d 863, 872 (5th Cir. 1998) (holding that district court did not abuse its
discretion in admitting evidence of defendant’s prior convictions for the same
crime of alien smuggling). The central theory of the defense was that Jimenez-
Elvirez was merely and unwittingly present at the scene of the crime. And, as
was significant in United States v. Hernandez-Guevara, the other evidence
admitted in Jimenez-Elvirez’s trial shed little light on his intent and whether
his alleged crime was the result of mistake or accident. Id. Furthermore, the
two offenses were close in time, separated by little more than three months.
See Cockrell, 587 F.3d at 679 (stating that “the amount of time that separates
the extrinsic and charged offenses” is another factor to be considered).
Additionally, the district court gave appropriate limiting instructions to the
jury when the evidence was first introduced and before jury deliberations.
Such instructions mitigate the prejudice caused by the admission of prior
crimes evidence. Id. Consequently, the trial court did not abuse its discretion
in admitting evidence of the June 30 offense. See id. at 680; Hernandez-
Guevara, 162 F.3d at 872.
      C. U.S.S.G. § 2L1.1(b)(3) Enhancement Based on Prior Alien
         Smuggling Conviction
      Jimenez-Elvirez also challenges his sentence on a number of grounds.
First, he argues that the evidence does not support the two-level sentence
enhancement he received under U.S.S.G § 2L.1(b)(3)(A) for having sustained a
prior conviction for a felony immigration offense. The PSR, which the district
court adopted without change, recommended the enhancement based on the
June 30 offense charged in case number 5:15-cr-829. 3 Jimenez-Elvirez pleaded
guilty to this offense on the morning of October 7, 2015—mere hours before he



      3  A joint PSR was prepared to cover sentencing for Jimenez’s June 30, 2015 offense
(styled 5:15-cr-829) and the October 7, 2015 offenses at bar (styled 5:15-cr-1313).
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committed the instant offenses. The PSR indicates, however, that the plea was
taken by a U.S. magistrate judge, “with a sentencing date to be determined at
a later date” before the presiding district court judge. Thus, Jimenez-Elvirez
argues that at the time of his arrest on the current charges, his plea had not
yet been accepted by the district court and it was not a final conviction for
purposes of § 2L.1(b)(3)(A). 4
      Because Jimenez-Elvirez did not object to the enhancement at
sentencing, he concedes that our review is only for plain error. To prevail on
plain error review, Jimenez-Elvirez must show: (1) “an error or defect—some
sort of deviation from a legal rule—that has not been intentionally
relinquished or abandoned”; (2) that is “clear or obvious, rather than subject to
reasonable dispute”; and (3) that “affected [his] substantial rights.” Puckett v.
United States, 556 U.S. 129, 135 (2009) (internal citations omitted). If these
three prongs are satisfied, we have the discretion to remedy the error; however,
this discretion “ought to be exercised only if the error ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)).
      Section 2L1.1(b)(3) provides for a two-level enhancement “[i]f the
defendant committed any part of the instant offense after sustaining . . . a
conviction    for    a   felony    immigration       and    naturalization      offense.”
§ 2L1.1(b)(3)(A). Section 2L1.1 does not itself state when a prior conviction
becomes “final” for enhancement purposes.             See § 2L1.1 and commentary.
Citing our decisions in United States v. Escobedo, 757 F.3d 229 (5th Cir. 2014),



      4  To provide further support for this argument, Jimenez-Elvirez filed an opposed
motion to supplement the record with the docket sheet for case number 5:15-cr-829, which
we granted. The docket sheet indicates that on October 7, 2015, Jimenez-Elvirez consented
to administration of the guilty plea by the magistrate judge. The next day, the magistrate
judge issued a report and recommendation recommending that the district court accept
Jimenez-Elvirez’s plea, which the district court adopted on October 23.
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and United States v. Cessa, 626 F. App’x 464 (5th Cir. 2015) (unpublished), as
well as Federal Rule of Criminal Procedure 11(d), Jimenez-Elvirez contends
that his prior conviction did not become final until the district court accepted
his guilty plea on October 23, 2015. Consequently, he argues that the June 30
offense did not support the district court’s application of the enhancement.
            1. Whether the District Court Committed Error
      In Escobedo, we stated that the defendant “had an absolute right under
Federal Rule of Criminal Procedure 11(d)(1) to withdraw his guilty plea before
it was accepted by the district court.” 757 F.3d at 233–34; see also id. at 231
n.1 (“A defendant’s initial plea entered during arraignment does not become
final until it is accepted by the district court and embodied in the judgment of
the court.”). Rule 11(d)(1), in turn, provides that “[a] defendant may withdraw
a plea of guilty or nolo contendere . . . before the court accepts the plea, for any
reason or no reason[.]” Fed. R. Crim. P. 11(d)(1). We affirmed this principle in
Cessa, 626 F. App’x at 470–71. In both cases, the defendant had tendered an
initial plea of guilty before a magistrate judge, but sought to withdraw his plea
before the district court accepted it.
      Our Rule 11 jurisprudence derives from the structural guarantees of
Article III of the U.S. Constitution and its concomitant constraints on
magisterial authority. In United States v. Dees, 125 F.3d 261 (5th Cir. 1997),
we recognized the statutory authority of magistrate judges under the
“additional duties” clause of the Magistrates Act, 28 U.S.C. § 636(b)(3), to
conduct guilty plea allocutions in criminal cases. Id. at 265–66. But that
authority is delegated from and circumscribed by “the exclusive Article III
power of a district court to preside over a felony trial.” Id. at 267; see also id.
at 268 (“only Article III judges, not their adjuncts, have the power to dispose
of cases or controversies”). We concluded in Dees that magistrate judges’
conducting plea proceedings did not run afoul of Article III because “[t]he
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taking of a plea by a magistrate judge does not bind the district court to accept
that plea. Rather, the district court retains ultimate control over the plea
proceedings, which are submitted to the court for its approval.” Id. at 268.
      These authorities indicate that, under the circumstances, Jimenez-
Elvirez’s conviction for the June 30 offense was not final at the time he
committed the instant offenses. Accordingly, we hold that the district court’s
reliance on Jimenez-Elvirez’s provisional plea of guilty before a magistrate
judge to support application of the § 2L1.1(b)(3)(A) enhancement was error.
            2. Whether the Error Is Plain
      The Government argues, however, that this error (which the
Government does not concede) was neither clear nor obvious because none of
the authorities on which Jimenez-Elvirez relies squarely addressed the issue
here—when a conviction is final for purposes of § 2L1.1(b)(3)(A). This is true.
Escobedo addressed the issue of whether a defendant may waive his right
under Rule 11(f) and Federal Rule of Evidence 410 to exclude evidence in a
jury trial of the withdrawal of his guilty plea and associated inculpatory
statements. 757 F.3d at 232–34. The waiver of that right was included in a
provision of the plea agreement, triggered if the defendant breached the
agreement, and the Government so alleged. Id. at 233. Because the district
court had not accepted the defendant’s plea—taken by a magistrate judge
during a rearraignment hearing—before he withdrew it, we concluded that the
waiver did not become effective under the circumstances. Id. at 234. In Cessa,
we reversed the denial of the defendant’s motion to withdraw his guilty plea,
which was filed after entry of the plea before a magistrate judge, but prior to
the district court’s acceptance of it. 626 F. App’x at 469–71.
      We have previously observed that a “lack of binding authority is often
dispositive in the plain-error context.” United States v. Gonzalez, 792 F.3d 534,
538 (5th Cir. 2015); see also United States v. Garcia-Gonzalez, 714 F.3d 306,
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                                  No. 16-40560
318 (5th Cir. 2013) (declining to find clear or obvious error where both parties
acknowledged that the defendant’s unpreserved argument raised an issued of
first impression); United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998)
(“Because [the defendant’s] theory requires the extension of precedent, any
potential error could not have been ‘plain.’”).
      However, given the constitutional constraints on magistrates’ authority,
which we discussed at length in Dees, and a defendant’s absolute and
unqualified right under Rule 11(d) to withdraw a guilty plea prior to its
acceptance by the district court, the matter is hardly “subject to reasonable
dispute.” Puckett, 556 U.S. at 135. In any event, we need not decide whether
the error here is plain as that term is interpreted under our precedent because,
as discussed infra, the circumstances of this case do not call for our exercise of
limited discretion to correct this legal error.
            3. Whether the Error Affected Substantial Rights
      As for the third prong of plain-error review, Jimenez-Elvirez must show
that the error affected his substantial rights, i.e., “a reasonable probability
that, but for the error, he would have received a lesser sentence.” United States
v. Hebron, 684 F.3d 554, 559 (5th Cir. 2012). Jimenez-Elvirez contends that
the error was prejudicial because application of the two-level enhancement
resulted in a higher Guidelines range—78 to 97 months versus 63 to 78
months. “When a defendant is sentenced under an incorrect Guidelines range
. . . the error itself can, and most often will, be sufficient to show a reasonable
probability of a different outcome absent the error.” Molina-Martinez v. United
States, 136 S. Ct. 1338, 1345 (2016).        Although this presumption may be
rebutted by a showing that the erroneous Guidelines range did not affect the
district court’s sentence, see id. at 1346, there is no indication in the record
that the district court would have sentenced Jimenez-Elvirez to 97 months, the


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                                  No. 16-40560
very top of the range it calculated, absent the erroneous calculation. Therefore,
Jimenez-Elvirez has shown that the error affected his substantial rights.
            4. Whether We Should Exercise Discretion to Reverse and Remand
      Nonetheless, this is not a case that calls for the exercise of our discretion
to reverse. As an initial matter, Jimenez-Elvirez’s argument regarding the
fourth prong of plain-error review is sparse and essentially indistinguishable
from his prong-three argument. “Importantly, the burden is on the defendant
to demonstrate that the error affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Andaverde-Tinoco, 741
F.3d 509, 523 (5th Cir. 2013). Although we decline to find that Jimenez-Elvirez
forfeited this argument, he has not made a strong showing that abstaining
from error correction in his case would result in “a miscarriage of justice,”
Olano, 507 U.S. at 736.
      “We sometimes exercise discretion to correct a plain error where the
imposed sentence is ‘materially or substantially above the properly calculated
range.’” United States v. Rosales-Mireles, 850 F.3d 246, 250 (5th Cir. 2017)
(quoting United States v. John, 597 F.3d 263, 289 (5th Cir. 2010)); see also, e.g.,
United States v. Mudekunye, 646 F.3d 281, 290–91 (5th Cir. 2011) (concluding
that substantial disparity of 19 months between imposed sentence and
applicable Guidelines range warranted exercise of discretion to correct the
error absent evidence suggesting that court would have imposed the same
sentence irrespective of the correct Guidelines range). But even a large gap
between the imposed sentence and the correct Guidelines range does not call
for correction where other factors counsel against it. This is such a case.
      Jimenez-Elvirez’s conduct falls within the heartland of § 2L.1(b)(3)(A)’s
purpose to punish recidivist conduct. Jimenez-Elvirez pleaded guilty to the
June 30 alien smuggling offense on the morning of October 7, 2015. He then
participated in the commission of an identical offense that same evening.
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                                 No. 16-40560
Where the sentence is otherwise clearly supported by the facts of the case, we
have declined to exercise our discretion to remand. See, e.g., United States v.
Davis, 602 F.3d 643, 651–52 (5th Cir. 2010) (declining to correct sentencing
guidelines error in case where defendant was found violating numerous terms
of his supervised release five months into his five-year sentence and apparently
planning a return to his prior criminal activities); United States v. Jones, 489
F.3d 679, 682 (5th Cir. 2007). It is only happenstance that Jimenez-Elvirez’s
conviction for the June 30 offense was not final at the time he committed the
instant offenses. Under the circumstances, we do not think that the error here
“affected the fairness, integrity, or public reputation of judicial proceedings.”
See Puckett, 556 U.S. at 135.
      D. The District Court’s “Triple Counting” of the June 30 Offense
      Jimenez-Elvirez    also   claims    the   district   court   erred   when   it
impermissibly “triple counted” the June 30 offense by “using the same conduct
to increase the sentence in three separate ways.” The PSR assessed a base
offense level of 12, under U.S.S.G. § 2L1.1(a)(3). It then recommended a six-
level enhancement, under § 2L1.1(b)(2)(B), for transporting between 25 and 99
unlawful aliens, based on findings that Jimenez-Elvirez transported 17
undocumented aliens on June 30, 2015 and an additional 27 undocumented
aliens on October 7, 2015, for a total of 44 undocumented aliens. As previously
discussed, it added another two offense levels, under § 2L1.1(b)(3)(A), because
Jimenez-Elvirez committed the instant offenses after sustaining a prior felony
immigration conviction. Finally, the PSR recommended a three-level increase,
under § 3C1.3, because Jimenez-Elvirez committed the instant offenses while




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                                      No. 16-40560
on release pending sentencing for the June 30 illegal transport offense. 5 The
district court adopted these recommendations without change.
       As with the previous issue, Jimenez-Elvirez concedes that he did not
object to the purportedly improper “triple counting” in the district court and
thus our review is limited to plain error. See Puckett, 556 U.S. at 135. But
even if he had, this issue would not be grounds for reversal because it raises
no error, plain or otherwise.
       It is well-established that “the Guidelines do not prohibit double
counting except when the particular Guideline at issue expressly does so.”
United States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999); see also United States
v. Hawkins, 69 F.3d 11, 14 (5th Cir. 1995) (“The Sentencing Guidelines do not
forbid all double counting. Double counting is prohibited only if the particular
guidelines at issue specifically forbid it.” (citations omitted)). Jimenez-Elvirez
does not point to any provision of or commentary to § 2L1.1 or § 3C1.3 expressly
prohibiting double or triple counting. 6
       The cases that Jimenez-Elvirez cites for support are not controlling
because they deal with another Guideline not at issue here, § 3C1.2, concerning
enhancements for reckless endangerment during flight, which expressly
prohibits double counting “solely on the basis of the same conduct.” § 3C1.2
cmt. n.1; see United States v. Gillyard, 261 F.3d 506, 510–12 (5th Cir. 2001)
(analyzing whether Application Note 1 to § 3C1.2 prohibited two separate



       5 In recommending this three-level enhancement, the PSR incorrectly referred to
Guideline § 3C1.2, which provides for a two-level increase for reckless endangerment during
flight. This error, however, is immaterial, because both the PSR’s description in support of
the enhancement and the district court’s colloquy at sentencing make clear that the
enhancement was applied for Jimenez-Elvirez’s violation of his supervised release.
       6  In any event, with respect to the six-level enhancement under § 2L1.1(b)(2)(B),
because the instant crime involved transporting 27 illegal aliens, it would have warranted a
six-level enhancement even without including the 17 illegal aliens from the June 30 offense,
a fact the district court noted during sentencing.
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                                  No. 16-40560
enhancements and concluding it did not because the events at issue were
temporally and spatially distinctive enough to not constitute the same
conduct); United States v. Cabral-Castillo, 35 F.3d 182, 188–89 (5th Cir. 1994)
(concluding that the district court plainly erred in ignoring Application Note 1
to § 3C1.2, but declining to exercise discretion to correct the error); see also
United States v. Hayes, 135 F.3d 435, 437–38 (6th Cir. 1998) (vacating and
remanding because district court erred by double counting “the same conduct”
in contradiction to Application Note 1 to § 3C1.2).
      Accordingly, this issue presents no cause for remand.
      E. Alleged Prosecutorial Misconduct During Closing Argument
      Finally, Jimenez-Elvirez contends that the prosecutor’s comments
during closing argument impermissibly bolstered Martinez’s credibility and
thus violated his right to a fair trial. As with his last two assignments of error,
Jimenez-Elvirez acknowledges that our review is limited to plain error due to
his failure to object at trial. See United States v. Aguilar, 645 F.3d 319, 323
(5th Cir. 2011).
      As a general rule, a prosecutor may not express a “personal opinion on
the merits of the case or the credibility of witnesses” except to the extent the
opinion is based on the evidence in the case. United States v. Alaniz, 726 F.3d
586, 616 (5th Cir. 2013) (internal quotations marks and citation omitted). A
prosecutor may not vouch for the credibility of a witness in a way that “might
reasonably lead the jury to believe that there is other evidence, unknown or
unavailable to the jury, on which the prosecutor was convinced of the accused’s
guilt.” United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010). Nor may
a prosecutor “offer personal assurances to the jury that government witnesses
are telling the truth” or “tell the jury that law enforcement witnesses should
be believed simply because they were doing their job.” United States v. Gracia,
522 F.3d 597, 601 (5th Cir. 2008). We “evaluat[e] the remark in light of the
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                                 No. 16-40560
context in which it is made.” United States v. Valencia, 600 F.3d 389, 409 (5th
Cir. 2010).
      Jimenez-Elvirez argues that the following statements were improper:
      Now, with respect to the testimony, there are instructions given to
      you in paragraph 1.08 [of the jury charge] of what to consider in
      determining a witness’s credibility. The case would have been a lot
      easier if all the agents said exactly the same thing and if they all
      said, oh, it was an unmarked unit, oh, yes, I had my lights and
      siren, and it would make it a lot easier. But that’s not what
      happened. So what inference can you draw from someone who
      says, I was in an unmarked unit, the flash—the bar was above the
      visor, the windshield, it is visible, the first time I didn’t come up
      completely closely up to the person, the second time I came up
      almost all the way to the window? What does that suggest to you?
      Someone who’s trying to exaggerate for the purpose of convincing
      you that, oh, he knew all the time? Or someone who’s saying, this
      is what actually happened?
      These comments do not improperly bolster Martinez’s testimony. The
challenged remarks do not reflect the prosecutor’s personal opinion regarding
the merits of the case or Martinez’s credibility. See Alaniz, 726 F.3d at 616.
The prosecutor neither offered his personal assurance that Martinez had
testified truthfully nor suggested that he should be believed simply because he
is a law enforcement officer.    See Gracia, 522 F.3d at 601.       Nor did he
reasonably imply that he was convinced of Jimenez-Elvirez’s guilt based on
evidence that was not known to the jurors. See McCann, 613 F.3d at 495.
Furthermore, the prosecutor’s comments as to credibility did not “go beyond
the evidence” presented at trial.    Aguilar, 645 F.3d at 324.      Rather, the
prosecutor suggested to the jury that Martinez’s testimony itself contains
indicia of honesty—that the testimony’s imperfection is suggestive of its
truthfulness.   Moreover, when viewed in the context of the Government’s
closing argument as a whole, the challenged commentary “was not dominant
and does not cast doubt on the verdict.” United States v. Dunigan, 555 F.3d

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                                   No. 16-40560
501, 509 (5th Cir. 2009). Therefore, Jimenez-Elvirez has not shown error, plain
or otherwise, in the admission of the challenged remarks. See id. at 508–09;
Puckett, 556 U.S. at 135.
                            III.    CONCLUSION
      For the foregoing reasons, Jimenez-Elvirez’s convictions and sentences
are in all respects AFFIRMED.




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