     Case: 14-50163        Document: 00512863040          Page: 1     Date Filed: 12/09/2014




             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                        No. 14-50163                        United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
UNITED STATES OF AMERICA,                                                   December 9, 2014
                                                                              Lyle W. Cayce
                Plaintiff - Appellee                                               Clerk

v.

GREGORY P. BOYD,

                Defendant - Appellant




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


Before JOLLY and COSTA, Circuit Judges, and ROSENTHAL, District
Judge. *

ROSENTHAL, District Judge:
      This is an appeal from a conviction and sentence for evading federal in-
come taxes by filing false returns. Neither the legal nor factual issues are
novel. Defendants prosecuted under 26 U.S.C. § 7206(1) cannot be convicted
unless the government proves that they willfully violated the law. A recurring
defense argument in such prosecutions is that the government has not proven
willfulness because it failed to show the absence of a good-faith belief that the
defendant did not have to file returns or pay taxes. The argument is often


      *   District Judge of the Southern District of Texas, sitting by designation.
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                                       No. 14-50163
based on a theory about why federal income tax laws are invalid or unenforce-
able or why they do not apply to the defendant. Defendants often argue that
even if the theory is so wrong that it is objectively unreasonable, they nonethe-
less believed it in good faith.
      Gregory P. Boyd was convicted of three counts of filing false income tax
returns showing he had no taxable income. Before and during trial, Boyd took
the position that these tax returns reflected his belief that the only people re-
quired to pay federal income taxes were those who earned income working for
the federal government. On appeal, Boyd asserts that the government failed
to prove that he did not hold this belief in good faith. He challenges the denial
of funding for neuropsychologist testimony, the admission of uncharged con-
duct, the prosecutor’s statements, the judge’s statements, the jury instructions,
the response to a jury note, and the sufficiency of the evidence. We affirm.
                                  I.     BACKGROUND
      Boyd filed his tax returns for 2004, 2005, and 2006 in October 2007. He
had recently read a book called Cracking the Code, which espoused a theory
that federal income tax obligations applied only to individuals who earned in-
come working for the federal government. The three returns Boyd filed in Oc-
tober 2007 declared that in 2004, 2005, and 2006, he had zero income and zero
tax liability. That was not true. During those three years, Boyd had continued
the work he had done in prior years for a company called Pinnacle Partners,
and had earned income totaling $795,000.
      In April 2006, Boyd sent his income and expense information for 2004 to
the tax specialist he had previously used. This specialist prepared a return for
Boyd to file showing a tax liability of over $27,000. Boyd did not file the return
he received from the tax specialist. Instead, in October 2007, he filed a return
for 2004 filled with zeroes: zero income, zero credits and deductions, and zero


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                                  No. 14-50163
tax liability. One day later, Boyd filed similar returns for tax years 2005 and
2006.
        The IRS sent Boyd a letter warning that the returns were “frivolous” and
had “no basis in law,” and that the United States Supreme Court had rejected
similar arguments for avoiding taxes. ROA 702. Boyd responded with a letter
rejecting this “attempt at witness-tampering and/or extortion.” ROA 706. The
IRS scheduled a meeting with Boyd to audit his tax returns, but Boyd did not
appear.
        In March 2013, a grand jury indicted Boyd on three counts of violating
26 U.S.C. § 7206(1). Boyd retained a lawyer in May 2013. Four months later,
Boyd lost his job. The trial judge denied Boyd’s motion to have counsel ap-
pointed because Boyd was not indigent and he had retained counsel who had
not been discharged. Boyd’s retained counsel continued to represent him, as-
sisted by another lawyer who Boyd asserts was working pro bono.
        The issue at trial was whether Boyd believed in good faith that he had
no taxable income. Before trial, defense counsel filed motions asking the judge
for funds under the Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, for a neu-
ropsychologist to examine Boyd and testify about whether he had a mental
impairment from playing professional football years earlier, and whether this
contributed to his belief that what he had read in Cracking the Code was true.
Boyd’s lawyer supported these motions by explaining that in her 2013 interac-
tions with him, she saw signs of poor memory and confusion. The district court
denied the motions, finding that Boyd was not indigent, as evidenced by the
fact that he had retained private counsel, and that the proposed testimony was
irrelevant and unnecessary for Boyd’s defense.
        During opening statements, defense counsel referred to Boyd as “Greg.”
ROA 553. The district judge interrupted to remind her that in the formality of


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                                    No. 14-50163
federal court, lawyers should refer to their clients by their last names and not
by such familiar terms as “Greg,” “Butch,” or “Shorty.” ROA 553.
         At trial, the prosecution introduced Boyd’s filed tax returns for 2003 and
2007 to 2011 and his tax transcripts for 1990 to 2011. The documents showed
that Boyd had filed accurate and timely returns for tax years 1994 to 2001,
during which he was subject to withholding and received a refund. In 2002
and 2003, Boyd did not have taxes withheld and delayed filing his returns. The
government presented evidence showing that Boyd’s taxable income from
2004, 2005, and 2006 totaled $795,000 and that his expenses met or exceeded
his income each year. Pinnacle Partners, the company Boyd worked for, had
sent him 1099 forms showing his earned income for each of the tax years at
issue.
         The returns for tax years 2007 to 2011 showed that Boyd continued to
file inaccurate returns declaring zero income even after receiving warnings
from the IRS. Boyd objected to the admission of both the pre-2004 and post-
2006 returns and related documents.
         Boyd elected to take the stand. He testified that based on Cracking the
Code, he believed that only people who received income from the federal gov-
ernment had to pay taxes. Peter Hendrickson, the author of Cracking the Code,
also testified for the defense. He explained that, contrary to Boyd’s position,
his book did not express the view that individuals had no obligation to accu-
rately declare their income and pay federal taxes. When the prosecutor ques-
tioned Boyd about that statement on cross-examination, Boyd responded that
he had not heard that part of Hendrickson’s testimony.
         The parties agreed that despite Hendrickson’s testimony, his book did
present the theory that Boyd described. The prosecutor told the judge that he
should not have cross-examined Boyd about that part of Hendrickson’s testi-
mony because it could confuse the jury. The district court proposed that the
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                                  No. 14-50163
parties stipulate that Hendrickson’s testimony was wrong on that point, but
Boyd did not agree. The prosecutor then proposed that he would clarify in
closing argument that Hendrickson’s book espoused the theory described. The
court agreed, and counsel for Boyd did not object.
      In closing argument, the prosecutor told the jury that Cracking the Code
did state that only those who earned income from the federal government had
to pay federal income taxes. The prosecutor then told the jury that “even
though it’s in the book, it is wrong. It’s absurd. It’s one of the most preposter-
ous things I’ve ever heard in my life. And I will argue to you that even if Mr.
Boyd read it, he didn’t believe it.” ROA 1054–55.
      In her closing argument, defense counsel reiterated that Boyd had acted
in good faith. She used phrases such as “no freaking way,” “same-old crap,”
and “screw up.” ROA 1075–76, 1084. Later, outside the jury’s presence, the
judge reprimanded her for using inappropriate language in her argument.
      During the jury’s deliberations, the court responded to four notes. The
third note asked whether the jury could stay past the usual ending time of 6:00
p.m. to continue deliberating. The court responded to this note without con-
sulting the lawyers on the record, telling the jury that if they did not finish by
6:00 p.m., they would return the next day. Before 6:00 p.m., the jury returned
a guilty verdict on all three counts.
      Before sentencing, Boyd’s counsel again moved for the appointment of a
neuropsychologist to offer evidence in support of a downward adjustment for
mental impairment under § 5K2.13 of the Sentencing Guidelines. The court
denied the motion. The court sentenced Boyd to 33 months on each count, to
be served concurrently, the lowest end of the 33 to 41 month Guidelines range.
      Boyd timely appealed.




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                                   No. 14-50163
                             II.    DISCUSSION
A.    The Request for CJA Funds for a Neuropsychologist
      Defense counsel asked the district court six times to declare Boyd indi-
gent and appoint a neuropsychologist to evaluate him and testify about
whether he had a mental impairment that contributed to a good-faith belief
that the returns he filed were truthful and lawful. The district court denied
each motion, finding that Boyd was not indigent and that the proposed expert
testimony was not necessary for his defense. Boyd argues that the inability to
present neuropsychological testimony prejudiced his ability to defend and to
argue for a reduced sentence. We review these rulings for abuse of discretion.
See United States v. Hardin, 437 F.3d 463, 468 (5th Cir. 2006).
      Even if Boyd was indigent, to obtain CJA funds, he needed to show that
the testimony he sought to introduce was necessary. The CJA, 18 U.S.C. §
3006A(e), provides that a “person who is financially unable to obtain investi-
gative, expert, or other services necessary for adequate representation” may
obtain such services after demonstrating in an ex parte proceeding that the
services are necessary. The burden is on the defendant “[t]o justify the author-
ization of investigative services under § 3006A(e)(1), . . . demonstrat[ing] with
specificity[ ] the reasons why such services are required.” United States v. Ga-
dison, 8 F.3d 186, 191 (5th Cir. 1993) (emphasis omitted). Boyd intended to
use the neuropsychologist’s testimony to show that he lacked the mens rea nec-
essary for the charged offenses.
      Under the Insanity Defense Reform Act (IDRA), 18 U.S.C. § 17, insanity
is an affirmative defense to be proved by clear and convincing evidence, but
“[m]ental disease or defect does not otherwise constitute a defense.” The IDRA
does not address whether expert testimony on a mental defect may be admitted
to negate the specific intent element of a charged offense. Some circuits have
found such evidence admissible, but only under limited circumstances because
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                                 No. 14-50163
of the risks it presents. See United States v. Eff, 524 F.3d 712, 720 n. 11 (5th
Cir. 2008) (noting the practice in other circuits). The Eleventh Circuit has
noted that psychiatric evidence rarely negates specific intent, presents an in-
herent danger of distracting the jury from the presence or absence of mens rea,
and “may easily slide into wider usage that opens up the jury to theories of
defense more akin to justification.” United States v. Cameron, 907 F.2d 1051,
1067 (11th Cir. 1990) (quoting United States v. Pohlot, 827 F.2d 889, 904–05
(3d Cir. 1987). District courts therefore “must examine such . . . evidence care-
fully to ascertain whether it would, if believed, ‘support a legally acceptable
theory of lack of mens rea.’” Id. (quoting Pohlot, 827 F.2d at 906).
      The Fifth Circuit has not ruled on the issue, and we need not do so here.
Even under the cases allowing similar evidence, the district court did not abuse
its discretion by excluding it in this case. Boyd based his argument for the
evidence on the fact that he had played professional football decades earlier
and on what his lawyer observed in 2013. But the issue was Boyd’s mens rea
in 2007. In the years before and after 2007, Boyd was an independent consult-
ant at Pinnacle Partners working to obtain regulatory approvals for large real-
estate development projects. There was no evidence that any mental-health
professional, physician, family member, or colleague had raised concerns about
Boyd’s cognitive abilities or suggested that any cognitive defects impaired his
ability to perform his job in those years. We find no abuse of discretion in
denying the requests for the appointment and funding of a neuropsychologist
to examine Boyd.
B.    Evidence of Other Tax Filings
      Boyd challenges the district court’s admission of his tax transcripts from
1990 to 2011 and his tax returns from 2003 and 2007 to 2011. A district court’s
evidentiary rulings are reviewed under an abuse-of-discretion standard.
United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011). Even if the district
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                                 No. 14-50163
court erred in admitting the evidence, we look to see whether harm resulted.
Id.
       The documents at issue were relevant to whether Boyd willfully violated
the law, that is, whether Boyd believed, in good faith, that only those working
for the federal government were subject to federal income taxes. Evidence of
willfulness includes a defendant’s history of previously filing accurate tax re-
turns and his receipt of warning notices from the IRS. United States v. Shivers,
788 F.2d 1046, 1048–49 (5th Cir. 1986).
       The tax transcripts and tax return from the years before 2007 showed
that when Boyd’s taxes were withheld, as in tax years 1994 to 2001, he com-
plied with his tax obligations. When his taxes were not withheld, as in tax
years 2002 and 2003, he delayed filing his returns. This evidence was relevant
both to Boyd’s knowledge and understanding of his tax obligations, as well as
to his financial condition when he was not subject to withholding and his mo-
tivation to at least delay filing his returns and paying his taxes.
       The transcripts and returns from the years after 2007 reflected that
Boyd continued to file returns filled with zeroes, even after the IRS warned
him that his filings were based on frivolous legal positions. These documents
were admitted to show that even after Boyd was informed of his tax obligations
and of the absence of any basis to avoid them, he continued to file false tax
returns. On one level, the returns showed that Boyd was consistent in his
professed good-faith belief that filing returns showing no income was lawful.
On another level, the returns evidenced Boyd’s intent to violate the law by
showing that he continued to file no-income returns after learning that there
was no basis to do so. The district court did not abuse its discretion in admit-
ting these documents.




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C.    Sufficiency of the Evidence
      Boyd argues that the district court erred in denying his Rule 29 motion
for acquittal because the evidence was insufficient to support his conviction.
We review the denial of his motion for acquittal de novo, asking whether, view-
ing the evidence in the light most favorable to the verdict, a rational jury could
have found the essential elements of the offense charged beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Mil-
ler, 588 F.3d 897, 907 (5th Cir. 2009).
      Proving a § 7206(1) violation requires the government to prove that the
defendant: (1) made and signed a materially false federal income tax return;
(2) submitted a written declaration stating under penalties of perjury that the
return was true and correct; (3) did not believe that the return was true and
correct when he signed it; and (4) signed it willfully and with the specific intent
to violate the law. United States v. Bishop, 264 F.3d 535, 552 (5th Cir. 2001).
“Willfulness . . . requires the Government to prove that the law imposed a duty
on the defendant, that the defendant knew of this duty, and that he voluntarily
and intentionally violated that duty.” Cheek v. United States, 498 U.S. 192,
201 (1991).
      The evidence showed that Boyd had declared his income and paid taxes
for 14 years before filing the returns charged in the indictment. Before Boyd
read Cracking the Code, he had hired an accountant to prepare his 2004 tax
return and, in April 2006, paid the account for that work. Instead of filing the
return the accountant prepared and sent him, Boyd delayed until October
2007, when he completed and filed his own returns for 2004, 2005, and 2006
showing zero income and zero taxes due. Boyd had received a 1099 form re-
porting his taxable income for each of the three years. There was ample evi-
dence that Boyd knew he had a duty to report his income accurately and pay
taxes, as he had done for 14 years and as his tax-return preparer had done for
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                                   No. 14-50163
him for tax year 2004; that he had no good-faith belief that he was suddenly
no longer subject to federal income tax laws; and that he willfully violated the
law by filing returns showing no income and no tax liability. See Cheek, 498
U.S. at 201; United States v. Simkanin, 420 F.3d 397, 410 (5th Cir. 2005). The
district court did not err in denying the motion for acquittal.
D.     Jury Instructions
       Boyd did not object to the jury instructions at trial. He now argues that
they did not sufficiently explain that the jury had to find that he willfully
signed a false tax return to convict him. We review this claim for plain error.
See United States v. Martin, 332 F.3d 827, 834 (5th Cir. 2003).
       “Plain error exists if (1) there was error; (2) the error was clear and ob-
vious; and (3) the error affected a substantial right.” United States v. Burns,
526 F.3d 852, 858 (5th Cir. 2008). An error is clear and obvious if its existence
cannot be reasonably debated. See United States v. Bohuchot, 625 F.3d 892,
897 (5th Cir. 2010). Generally, an error affects a defendant’s substantial rights
“if there is a reasonable probability that the result of the proceedings would
have been different but for the error.” United States v. Montes-Salas, 669 F.3d
240, 247 (5th Cir. 2012). Even when those conditions are satisfied, we have
discretion to correct the forfeited error only if it seriously affects the fairness,
integrity, or public reputation of court proceedings. Puckett v. United States,
556 U.S. 129, 135 (2009).
       The district court instructed the jury that to convict, it had to find “[t]hat
the defendant made the statement willfully, that is, with intent to violate a
known legal duty.” ROA 402. The instructions defined “willfully” as acting
“intentionally — not by accident or mistake — with knowledge his conduct vi-
olated the law.” ROA 403. This instruction was consistent with the Supreme




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                                  No. 14-50163
Court’s definition of willfulness in the context of a tax-law violation as “a vol-
untary, intentional violation of a known legal duty.” Cheek, 498 U.S. at 200
(citing United States v. Pomponio, 429 U.S. 10, 12 (1976)). We find no error.
E.     Prosecutorial and Judicial Misconduct
       Boyd claims that both the prosecutor and the judge made prejudicial
comments that deprived him of a fair trial. Because Boyd did not contempora-
neously object, we again review for plain error. See United States v. Mares,
402 F.3d 511, 515 (5th Cir. 2005).
       During closing, the prosecutor argued that Boyd did not believe in good
faith that the theory he read in Cracking the Code was legally sound. The
prosecutor stated that the theory was “wrong,” “absurd,” “one of the most pre-
posterous things I’ve ever heard in my life,” and “one of the dumbest things I
have ever heard.” ROA 1055–62.
       While there is “wide latitude” in making closing arguments, United
States v. Thompson, 482 F.3d 781, 785 (5th Cir. 2007) (quotation marks and
citation omitted), they are limited to “properly admitted evidence and any rea-
sonable inferences or conclusions that can be drawn from that evidence,”
United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010) (quotation marks
and citation omitted). A prosecutor “may not express his personal opinion on
the merits of the case or the credibility of witnesses,” including the defendant.
United States v. Alaniz, 726 F.3d 586, 616 (5th Cir. 2013) (quoting United
States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999)).
       A reviewing court considers a prosecutor’s closing argument as a whole
and in the context of the trial. Thompson, 482 F.3d at 785. Recognizing that
closing argument is just that — argument — we allow prosecutors to use ex-
pressive language and “a bit of oratory and hyperbole” in arguments, id. at 786,
and we generally place statements characterizing a defendant’s positions or


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                                 No. 14-50163
arguments as “ridiculous, absurd, and insulting” in this category. United
States v. Bush, 451 F. App’x 445, 451 (5th Cir. 2011) (unpublished).
      Because the prosecutor also offered his personal opinion that the theory
Boyd claimed to believe was “one of the most preposterous things I’ve ever
heard in my life,” and “one of the dumbest things I have ever heard,” we con-
sider whether these statements affected Boyd’s substantial rights. To do so,
we consider three factors: (1) the magnitude of the statement’s prejudice, (2)
the effect of any cautionary instructions given, and (3) the strength of the in-
culpatory evidence supporting the conviction. United States v. Aguilar, 645
F.3d 319, 325 (5th Cir. 2011).
      The contested statements were at most weakly prejudicial. The unrea-
sonableness of Boyd’s theory was supported by the theory itself, as well as by
the witness testimony and Boyd’s prior recognition of his duty to pay taxes.
Viewing the isolated statements in the context of the overall argument, it is
clear that the prosecutor argued only that Boyd, an educated professional, did
not subjectively believe, in good faith, the objectively unreasonable theories
espoused in Cracking the Code. And viewed in the context of the strong evi-
dence of guilt presented in the trial, these brief statements in closing argument
did not affect Boyd’s substantial rights. See United States v. Delgado, 672 F.3d
320, 337 (5th Cir. 2012), cert. denied, 133 S. Ct. 525 (2012).
      Nor do we find plain error in the district court’s statements, made out-
side the jury’s presence, that Boyd’s tax theory was “the most absurd theory of
all the theories I’ve tried in 20 years,” and “just malarkey.” ROA 470, 472. The
jury did not hear these comments, and they provide no basis for reversal.
      Boyd also challenges two of the district judge’s statements made in front
of the jury. During Boyd’s testimony, counsel asked him to “explain to the jury
why you think you’re here today.” ROA 963. When the prosecutor objected,
the court interjected, “[b]ecause he’s indicted and arrested and brought here
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                                  No. 14-50163
under the law.” Id. During opening argument, the district court reminded
defense counsel to refer to her client by his last name, not as “Greg,” “Shorty,”
or “Butch.” ROA 553.
       The judge’s first comment was an accurate statement of the reason for
Boyd’s presence, made in response to an irrelevant question by Boyd’s counsel
that drew an objection. The second comment reiterated the judge’s instruc-
tions to all counsel to maintain an appropriate level of formality, instructions
that defense counsel found difficult to follow. The jury instructions included a
reminder to the jury that “[n]o matter what I do or say up here, don’t think I
have any opinion one way or the other on this case. That is your job.” ROA
537. These comments present no reversible error. See United States v. Munoz-
Romo, 947 F.2d 170, 180 (5th Cir. 1991), rev’d on other grounds, 506 U.S. 802
(1992); United States v. Davis, 752 F.2d 963, 975 (5th Cir. 1985).
F.     Jury Note 3
       The district court told the jury when they started deliberating that they
would work from 8:30 a.m. to 6:00 p.m. At the end of the third day of deliber-
ations, the jury sent a note at around “5pm” indicating that they were “still
working” but that “[i]f we could stay past 6 I think we would get there. Other-
wise we should come back in the morning.” ROA 1221. The district court did
not address the note on the record. At “4:58 p.m.,” the court responded with a
note telling the jury to “[t]ry to get a verdict by 6pm — if not you will need to
return tomorrow morning.” ROA 1221. The jury was able to reach a verdict
before 6:00 p.m.
       Boyd claims that the district court erred by not reading the note into the
record and holding an on-the-record conference to discuss the response with
counsel. We ordinarily review challenges to a district court’s responses to jury
notes for abuse of discretion. See United States v. Daniels, 281 F.3d 168, 183–


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84 (5th Cir. 2002). Because Boyd did not object to how the district court han-
dled the response, including in his motion for acquittal, our review is for plain
error. See id.
         A defendant generally has the right to receive notice when the court re-
ceives a jury note and to be given an opportunity to be heard on the response.
See United States v. Bieganowski, 313 F.3d 264, 293 (5th Cir. 2002). If a court
responds to a question on a ministerial matter such as scheduling without con-
sulting counsel, however, there is generally no harm to the defendant’s sub-
stantial rights. See United States v. Ceja, 387 F. App’x 441, 443 (5th Cir. 2010)
(unpublished) (denying the appellant’s request to supplement the record on
appeal with jury notes about requests for lunch and a smoke break because,
even if the defendant was not consulted, the notes were “immaterial”). In this
case, the district court’s response told the jury that the previously announced
schedule continued to apply. We find no abuse of discretion, much less plain
error.
G.       Sentencing
         Boyd appeals his within-Guidelines 33-month sentence as procedurally
and substantively unreasonable. Boyd did not contemporaneously object, and
our review is again for plain error. See United States v. Mondragon-Santiago,
564 F.3d 357, 361 (5th Cir. 2009); United States v. Peltier, 505 F.3d 389, 391–
92 (5th Cir. 2007), cert. denied, 554 U.S. 921 (2008).
         Boyd argues that his sentence was unwarrantedly disparate from the
sentences of other defendants based on a survey he compiled and presented to
the district court of sentences in what he asserts were similar tax cases across
the country. The court, of course, had little information about the defendants
in Boyd’s survey, who were generally sentenced to serve between 6 and 24
months. The district court’s within-Guidelines 33-month sentence was pre-
sumptively reasonable and was sufficiently explained. We find neither abuse
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                                 No. 14-50163
of discretion nor plain error in the district court’s decision not to sentence in
the range Boyd’s survey suggested.
H.     Ineffective Assistance of Counsel
       Finally, Boyd argues that his chosen trial counsel was constitutionally
ineffective. Claims of constitutionally ineffective counsel generally should not
be raised on direct appeal unless they were presented to the trial court. See
United States v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007). We see no reason
for a different approach here.


                                                                   AFFIRMED.




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