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

                                                                            FILED
                                                                            June 4, 2008
                                       No. 06-41471
                                                                      Charles R. Fulbruge III
                                                                              Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee

v.

ROBERT EARL EDWARDS

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 5:01-CR-1174-6


Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Robert Earl Edwards, federal prisoner # 30222-039,
filed a motion pursuant to 28 U.S.C. § 2255 to vacate his 2003 conviction for
conspiracy to possess with intent to distribute in excess of 1000 kilograms of
marijuana, two counts of possession with intent to distribute in excess of 100
kilograms of marijuana, and conspiracy to commit money laundering. The
district court denied his motion, and we granted him a certificate of appealabilty




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41471

(“COA”). Having considered the grounds on which the COA issued, we AFFIRM
the judgment of the district court.
                                I. BACKGROUND
         Edwards was charged, along with fifteen codefendants, in a superceding
indictment which included thirteen counts overall. He was convicted by a jury
on September 19, 2002, after a nine-day trial, of conspiracy to possess with
intent to distribute in excess of 1000 kilograms of marijuana in violation of 21
U.S.C. § 841, two counts of aiding and abetting possession with intent to
distribute in excess of 100 kilograms of marijuana in violation of 18 U.S.C. § 2,
and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h).
Edwards stood trial with two co-defendants whose convictions are not here at
issue.
         Edwards was sentenced to 192 months of imprisonment on each count to
run concurrently, followed by concurrent five-year and three-year terms of
supervised release. Edwards was also ordered to pay a mandatory assessment
of $400. His conviction was affirmed on direct appeal on August 16, 2004, in
United States v. Giddings, 107 Fed. Appx. 420, 423 (5th Cir. 2004), where we
concluded that “[e]vidence at trial clearly connected Edwards to the Oziel Garcia
drug ring.” That evidence included “numerous taped conversations [between the
informant] and Edwards discuss[ing] the transportation of marijuana,” phone
conversations between Edwards and Garcia and his associates, money transfers
between Edwards and Garcia and his associates, and proof that drivers
employed by Edwards had loads of marijuana seized from their trucks by the
authorities. Id. at 423-24.
         Edwards filed a petition for a writ of certiorari to the Supreme Court, and
on February 28, 2005, the Court vacated the judgment and remanded for further
consideration in view of United States v. Booker, 543 U.S. 220 (2005). Edwards
v. United States, 543 U.S. 1181 (2005). On May 31, 2005, this court affirmed
Edwards's sentence on remand because he had not shown that the district court

                                          2
                                       No. 06-41471

would have imposed a lesser sentence had the Guidelines been advisory. United
States v. Edwards, 132 Fed. Appx. 535, 536-37 (5th Cir. 2005).
       On June 26, 2006, Edwards filed a 28 U.S.C. § 2255 motion to vacate the
judgment, arguing that: (1) the district court gave jury instructions in which it
improperly commented on the evidence; (2) his sentence was based on
"extra-verdict" enhancements in violation of Booker; and (3) his attorney
provided ineffective assistance of counsel by failing to object to the district
court’s improper jury instructions, failing to preserve his objections to his
sentence based on Booker, failing to argue that the sentences should have been
individualized for each conviction, and failing to argue on appeal that, after
Booker, the district court was not authorized to make a drug quantity finding.
On July 17, 2006, the district court issued a memorandum opinion and final
judgment denying Edwards’s § 2255 motion on the merits and denying him a
COA.
       Subsequently, on June 14, 2007, this court granted Edwards a COA on
“whether the district court erred in denying his claim that the trial court
improperly commented on the evidence during the jury instructions and his trial
counsel was ineffective in failing to object to these comments.”1 We set forth the
challenged jury instructions at length in the course of our discussion.




       1
         We decline to address Edwards’s argument, raised for the first time in his reply brief
to this court, that the district court should have admitted certain evidence concerning other
individuals listed in the superceding indictment. See United States v. Fields, 483 F.3d 313, 352
n.36 (5th Cir. 2007) (stating that arguments raised for the first time in a reply brief are
abandoned). Even if the argument had been raised in Edwards’s opening brief, the issue
exceeds the scope of the COA issued by this court, which is the limit of our review. See United
States v. White, 307 F.3d 336, 339 n.1 (5th Cir. 2002) (citing Lackey v. Johnson, 116 F.3d 149,
151 (5th Cir. 1997)).

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                               II. DISCUSSION
                             A. Standard of Review
      When reviewing the denial of habeas relief, the district court's findings of
fact are reviewed for clear error and issues of law are reviewed de novo. United
States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).
                         B. The Trial Court’s Remarks
      Edwards argues that he was denied a fair trial because the district court
improperly commented on the evidence and, thereby, bolstered the government's
case during jury instructions. Moreover, Edwards contends that his attorney
provided ineffective assistance of counsel by failing to object to the instructions.
In particular, Edwards argues that the district court erred by stating that he
believed that certain elements of the offenses were not in serious dispute.
Further, Edwards asserts that the district court's statement that there was a
conspiracy “to move marijuana from Laredo up north” prejudiced him, as he was
the only defendant who lived in Detroit, Michigan.
      Edwards’s challenges require us to explore the role of the federal trial
court judge and determine whether, on the specific facts of this case, the district
court’s instructions to the jury fit within the scope of its proper role. Chief
Justice Hughes set out, in a unanimous opinion, Quercia v. United States, 289
U.S. 466 (1933), what has since been characterized as “the classic statement” of
the common law powers of the federal trial judge. United States v. Cisneros, 491
F.2d 1068, 1072-73 (5th Cir. 1974). The Chief Justice explained:
            In a trial by jury in a federal court, the judge is not a
            mere moderator, but is the governor of the trial for the
            purpose of assuring its proper conduct and of
            determining questions of law. [(Citation omitted).] In
            charging the jury, the trial judge is not limited to
            instructions of an abstract sort. It is within his
            province, whenever he thinks it necessary, to assist the
            jury in arriving at a just conclusion by explaining and
            commenting upon the evidence, by drawing their
            attention to the parts of it which he thinks important;

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              and he may express his opinion upon the facts, provided
              he makes it clear to the jury that all matters of fact are
              submitted to their determination. [(Citations omitted).]
              Sir Matthew Hale thus described the function of the
              trial judge at common law: “Herein he is able, in
              matters of law emerging upon the evidence, to direct
              them; and also, in matters of fact to give them a great
              light and assistance by his weighing the evidence before
              them, and observing where the question and knot of the
              business lies, and by showing them his opinion even in
              matters of fact; which is a great advantage and light to
              laymen.” Hale, History of the Common Law, 291, 202.
              Under the Federal Constitution the essential
              prerogatives of the trial judge are maintained in the
              federal courts. [(Citations omitted).]
Quercia, 289 U.S. at 469-70.
      While these judicial powers cannot be questioned, they are not unfettered.
The Chief Justice cautioned:
              This privilege of the judge to comment on the facts has
              its inherent limitations. His discretion is not arbitrary
              and uncontrolled, but judicial, to be exercised in
              conformity with the standards governing the judicial
              office. In commenting upon testimony he may not
              assume the role of a witness. He may analyze and
              dissect the evidence, but he may not either distort it or
              add to it. His privilege of comment in order to give
              appropriate assistance to the jury is too important to be
              left without safeguards against abuses . . . . This Court
              has accordingly emphasized the duty of the trial judge
              to use great care that an expression of opinion upon the
              evidence “should be so given as not to mislead, and
              especially that it should not be one-sided . . . .”
              [(Citations omitted).]
Id. at 470.
      In Quercia, the Court held that the trial court judge “did not analyze the
evidence,” but rather, “he added to it” by telling the jury during his instructions
“that ‘wiping’ one’s hands while testifying was ‘almost always an indication of
lying.’” Id. at 471-72. The trial court judge followed that with, “I think that


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every single word [the defendant] said, except when he agreed with the
Government’s testimony, was a lie.” Id. at 468. The Court concluded that this
was prejudicial error because the trial court judge “did not review the evidence
to assist the jury in reaching the truth, but in a sweeping denunciation
repudiated as a lie all that the accused had said in his own behalf . . . .” Id. The
Court so held notwithstanding the presence of a curative instruction in which
the trial judge stated “that his opinion of the evidence was not binding on the
jury and that if they did not agree with it they should find the defendant not
guilty.” Id. at 472. The Court reasoned that the curative instruction could not
erase the trial judge’s “characterization of the manner and testimony of the
accused” which was “likely to . . . excite a prejudice which would preclude a fair
and dispassionate consideration of the evidence.” Id.
      Similarly, we have consistently said that to “be constitutional error, the
trial judge’s statements, viewed as a whole, must have amounted to an
intervention that could have led the jury to a predisposition of guilt by
improperly confusing the function of judge and prosecutor.” United States v.
Munoz, 150 F.3d 401, 413-14 (5th Cir. 1998) (citation omitted). “In determining
whether the trial judge overstepped the limits imposed on the judge’s conduct,
this [c]ourt must view the proceedings as a whole.” United States v. Carpenter,
776 F.2d 1291, 1294 (5th Cir. 1985). And, “[m]oreover, we have previously
stated that even a comment arguably suggesting a judge’s opinion concerning
guilt is not necessarily reversible error but must be reviewed under the totality
of the circumstances, considering factors such as the context of the remark, the
person to whom it is directed, and the presence of curative instructions. United
States v. Lance, 853 F.2d 1177, 1182 (5th Cir. 1988). In essence, a “trial court
has wide latitude in commenting on the evidence during his instructions to the
jury, but he has not power to direct a verdict of guilty,” or take from the jury the
issue of the defendant’s guilt. United States v. Skinner, 437 F.2d 164, 165 (5th
Cir. 1971) (quoting Mims v. United States, 375 F.2d 135, 148 (5th Cir. 1967)); see

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                                        No. 06-41471

United States v. Dopf, 434 F.2d 205, 208-09 (5th Cir. 1970); United States v.
Inocencio, 40 F.3d 716, 729 (5th Cir. 1994).
       Turning to the challenged statements at issue in this case, Edwards is a
pro se litigant, and we construe his briefs liberally, see United States v. Wilkes,
20 F.3d 651, 653 (5th Cir. 1994), as contesting the following comments by the
district court while instructing the jury with respect to the existence of an
ongoing conspiracy, the element of “intent to distribute,” and the amount of
marijuana at issue in the case. However, as demonstrated by placing the
challenged comments in their proper context, Edwards has not necessarily
presented them as we are instructed to view them, in light of the record as a
whole. See United States v. Hefferon, 314 F.3d 211, 221 (5th Cir. 2002). After
a nine-day trial and in the course of detailed instructions that span over one
hundred transcribed pages, provided on two separate occasions because the jury
requested clarification on possession with intent to distribute, the district court
instructed as follows:2
              So what the [g]overnment is charging here in Count 1
              is that, over a period of time—and here it says May 1 of
              ‘98 to December of ‘01. You don’t necessarily have to
              find that it’s all of those dates. But for this purpose,
              let’s say that it was at least—according to the evidence
              that we’ve heard in this case, it’s at least sometime in
              the mid or early 1999 up to at least sometime later on
              in 2000. But that over a period of time, that’s the only
              important thing, that over a period of time there was
              this ongoing conspiracy to possess quantities of
              marijuana with the intent to distribute them.
                     And I think it’s—it’s probably fair to say—I mean,
              I have the right to comment on the evidence. I
              generally try not to, but I . . . think it’s not radical to
              say that, as one of the arguments said, I don't think it's
              any real doubt that . . . there was some kind of


       2
         The district court’s instructions are set forth at some length in an attempt to put them
in their proper context. The portions challenged by Edwards are italicized for ease of
identification.

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            conspiracy going on over a period of time between a lot
            of people to move marijuana from Laredo up North. But
            . . . you do have to be satisfied about that.
                    You have to be satisfied that . . . there was an
            ongoing plan—a conspiracy is simply an ongoing plan
            between at least two people, because you cannot
            conspire by yourself. There has to be at least two
            people who get together and agree that they are going
            to do something illegal. And under the law, it’s the
            agreement itself that’s a crime.
(Tr. vol. 11:1486-87.)
      Edwards also challenges the following conspiracy instruction, which
appears four pages later in the transcribed proceedings:
            So the [g]overnment doesn’t have to prove that there
            was a formal meeting or that there was a detailed
            contract or even exactly how all the scheme was
            involved. Although, in this case, forgetting the
            defendants for a minute, in this case, in this case,
            the—the overlay of what the scheme is, came out with
            some clarity. It's gathering stuff here in warehouses
            and putting it in trucks and taking it up north and that
            sort of thing.
                   So you—as I say, even leaving out these three
            defendants for a moment, there’s some indication of
            what the scheme is about.
(Tr. vol. 11:1490.)
      On the issue of intent to distribute, Edwards challenges the following:
            So . . . the elements are that you knowingly possessed
            a controlled substance. That substance is, in fact,
            marijuana. And that you had the intent to deliver it or
            pass it on to somebody else. And that it was at least
            100 kilos.
                    Now, as I say, intent to distribute simply means
            that you had the intent to pass it on. And you
            could—there, you can consider, first of all, the sheer
            volume of it. And the value of it. That’s why we allow
            evidence of value. And the way that it is wrapped and
            packaged. I mean, in both of these instances, it was
            found in tractor-trailers that were


                                       8
                                 No. 06-41471

            apparently—intended to hit the road and go somewhere
            else. So I don't think there's much of a serious dispute
            that whoever is liable for those counts, and we'll get to
            that in a minute, and ultimately that's your decision,
            but—but whoever is liable for the marijuana on those
            two occasions was intending to distribute it.
                  The key thing as to, of course, both of these
            defendants is did they—did they actually have anything
            to do with it.
(Tr. vol.11:1477-78.)
      Again on the issue of intent to distribute, Edwards challenges one sentence
of the district court’s following iteration of what the jury could find, not with
respect to him, but with respect to one of his codefendants:
            And the [g]overnment has to prove to you beyond a
            reasonable doubt, by either direct or circumstantial
            evidence that [one of Edwards’s codefendants,
            Giddings] knew [the marijuana] was there. If he knew
            it was there, then . . . that would be a case where you
            could find, and I’m not telling you what to find, but you
            could find he was in constructive possession because he
            was driving the rig alone. He was the operator of . . .
            the thing. And then you could look at the fact that it
            was going on a tractor-trailer up the highway, and the
            . . . value and the volume of it, that there was
            some—that there was obviously an intent to distribute
            to somebody.
                   And, indeed you could—and I’m not even sure
            there’s a contested issue on any of these cases.
            The—obviously moving marijuana on trucks from south
            to north of the country is an intent to distribute it to
            somebody. And so that’s what the statute is talking
            about, intent to distribute.
                   [A]s to Giddings, for example, that’s a fairly
            distinct discussion, because the issue there—you have
            to be satisfied it’s marijuana and you have to be
            satisfied it’s more than 100 kilos and you have to be
            satisfied that it was in the back of the vehicle and it
            was intended to be distributed. But the issue there
            is—the critical issue there is . . . did he know it was
            there. Did he even know it was there at all. He says he

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            did not. And, therefore, of course . . . you are not liable
            for possessing marijuana if you don’t know it, because
            then you don’t know it. And so you’re not knowingly
            possessing it.
(Tr. vol. 12:1551-52.)
      In reference to the quantity of marijuana required under the statute for
conviction of possession with the intent to distribute, Edwards challenges the
following instruction explaining what the government must prove:
            So, first of all, I will tell you that marijuana is a
            controlled substance. And that’s not a subject to
            debate.
                   But the elements of that crime, and this would
            apply to Counts 3 and 5, are that a defendant was in
            possession of a controlled substance and that . . . he
            knew it. That he knew that he was possessing a
            controlled substance. And that he had the intent to
            distribute it, which means simply that it was not for his
            personal use, but rather he had the intent to deliver it
            to someone. Maybe for money, maybe not for money.
            That’s not important.
                   And then, finally, that it involved—at least in
            Count 3 and Count 5, both, is that it involved at least
            100 kilos of marijuana. For your information, 100 kilos
            is roughly 220 pounds. So I think one of these—I don't
            think there's any doubt about the amount, but I think
            one of these was 400 and some odd pounds. And I think
            one of them was even—according to the evidence, even
            more than that. But you have to be satisfied that both
            of these were at least 100 kilos, which is at least . . . 220
            pounds. So that’s . . . what Counts 3 and 5 are.
(Tr. vol. 11:1476-77.)
      In explaining the theory that the defendants could be found guilty of
possession with the intent to distribute based on their participation in the
conspiracy, if the jury so concluded, the district court instructed them on the
following, which Edwards challenges out of context:
                 The next theory is that if people are members of
            a conspiracy, if you have found . . . that they are


                                         10
                                 No. 06-41471

            already part of a scheme to move marijuana through .
            . . whatever, through telephone conversations, through
            whatever other circumstances you’re looking at, if you
            find that they are members of a plan, a conspiracy, an
            agreement, to possess marijuana with the intent to
            distribute it, then if any of the conspirators carries out
            the plan, they’re all liable.
                   And that’s the other instruction I gave you. That
            . . . if Edwards for example, is a member—the
            government’s theory is that in the conversations back
            and forth with [the informant Vasquez] and talking . .
            . and three-way phone calls and all that, that he was, in
            fact knowing about it and sending drivers down and
            was in on the plan from the beginning. If that’s true
            and if the [g]overnment has satisfied you of that beyond
            a reasonable doubt, then he was part of a conspiracy, he
            was part of a plan, a scheme to do this. And then if
            anyone does it, whether it’s [codefendant] Giddings or
            . . . Tim Davis [another potential coconspirator] or
            anybody else does it to carry out the plan, then all the
            conspirators are liable possession with intent to
            distribute. Even if they never touched it, even if they're
            not even in town, they're all liable. Why? Because the
            plan of which they were a part has been carried out.

(Tr. vol. 12:1553.)
      Finally, in summing up the evidence and various theories of the case for
the jury toward the end of the second round of instructions, the district court
explained the following, which Edwards challenges:
                   So, the dispute, as I understand it, and you're not
            bound by this, but it is not so much what was factually
            going on. It's a matter of what was in the people's
            minds. That's where the—it seems to me the whole
            argument about this case has been.
                   Were these people who were truck drivers, who
            were doing trucking business, normal freight
            transactions, or at least thought they were, or were
            they knowingly participating in marijuana
            transactions? . . . But you have to wade through these
            different levels of are they members of a conspiracy,
            what is their knowledge, are they knowingly & willfully

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            participating in illegal activity. And all of that is what
            you have to be satisfied beyond a reasonable doubt ast
            to each—each defendant. And it’s . . . the government’s
            burden to prove that.
(Tr. vol. 12:1561-62.)
      After reviewing these comments in the context of the whole record, as we
are required to do, see Hefferon, 314 F.3d at 221, we conclude that the district
court’s comments in this case fall within the ambit of conduct condoned by Chief
Justice Hughes in Quercia when he declared:
            It is within his province, whenever he thinks it
            necessary, to assist the jury in arriving at a just
            conclusion by explaining and commenting upon the
            evidence, by drawing their attention to the parts of it
            which he thinks important; and he may express his
            opinion upon the facts, provided he makes it clear to the
            jury that all matters of fact are submitted to their
            determination.
289 U.S. at 469.     When put in their proper context, the district court’s
statements in this case fall short of being “quantitatively and qualitatively
substantial,” United States v. Lankford, 196 F.3d 563, 572 (5th Cir. 1999), as
required to pose any threat to the fairness of Edwards’s trial.
      In the past, we have held that a district court committed reversible error
when, in the course of instructing the jury, he essentially directed a guilty
verdict by making repeated comments such as, “Now in this case the evidence
is overwhelming,” and, “if you accept the testimony [presented by the
government], certainly there is ample evidence to find these defendants guilty
of the offense of which they are charged. Every element has been proved, if you
accept the testimony offered by the [government] . . . .” Dopf, 434 F.2d at 207-
08.
      Similarly, in Cisneros, we held that a district court committed reversible
error when “he came very close to behaving for an instant like an actual witness
for the prosecution,” when he implied in the jury instructions that the defendant


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and a key defense witness had planned to fabricate exculpatory testimony. 491
F.2d at 1075-76. The district court there commented, “Now, members of the
jury, I often do not comment upon evidence presented but the rules of law in
[f]ederal [c]ourt permit some comments, and I am expressing no opinion, but I
am saying to you very frankly that my opinion, that somebody is lying in this
case.” Id. at 1072. The district court then further commented on the demeanor
of the witness as he stepped off the witness stand, suggesting impropriety, an
aspect of the trial that the prosecution failed to highlight. Id.
      The district court’s comments in this case do not fall withing the ambit of
these cases. Rather, we conclude that the facts of this case are more analogous
to those in Inocencio, 40 F.3d 716. There, the defendant challenged the jury
instructions on the grounds that the district court improperly directed a verdict
on whether the substance at issue in the case was in fact cocaine, and that the
district court prejudiced the defendant by commenting on the testimony adduced
at trial on the element of intent to distribute as well as in defining the elements
of conspiracy. Id. at 729-31. While Edwards properly points out that the parties
in Inocencio had stipulated to cocaine, id. at 729, whereas in the case before us,
there was no such stipulation, that distinction does not end our analysis.
      The challenged instructions in Inocencio were similar to those presently
before us. There, with respect to the instruction on intent to distribute, the
district court instructed the jury:
            [T]o the extent that you believe [the testimony of a
            prosecution witness who stated that he intended to
            distribute the cocaine], and I don’t—at least I don’t
            think anybody’s challenging him on that part. I mean,
            whoever else was involved, he says that when the truck
            arrived . . ., he himself was going to take it and
            distribute it . . . . Well, that’s exactly what intent to
            distribute means. That the purpose of having that
            cocaine in somebody’s possession was to distribute it to
            other people. So [the witness] says, if you accept his
            testimony . . . .”

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                                   No. 06-41471

Id. at 729-30 (emphasis in original). We found no error in these instructions.
We explained that “a judge may comment on the evidence to facilitate the jurors’
task of reaching a proper verdict so long as the judge advises them that they are
not bound by his comments.” Id. at 730. More specifically, we held that the
“remarks . . . simply reflected the evidence in the record. The judge did not
instruct the jury to take [the witness’s] testimony as true, he merely suggested
that they could believe or disbelieve the testimony in considering whether there
was intent to distribute.” Id.
      The defendant in Inocencio also challenged the district court’s instructions
defining the elements of conspiracy. Id. Specifically, the district court had
instructed:
                     Because a conspiracy is simply an agreement, . . .
              and let[’]s forget for a minute who all is involved. But
              the type that [the government witness] is describing, an
              agreement to get a truck, arrange for a driver, meet and
              move the truck from one spot to another spot and
              deliver the cocaine and so forth. That would be a
              conspiracy. That would be a classic agreement
              situation where a group of people have reached an
              understanding that they’re going to do something
              illegal. They’re going to get possession of cocaine with
              the intention of distributing it to other people. So that
              would be a classic conspiracy to possess cocaine with
              intent to distribute it.
                     So nobody here is arguing, as I get it, that there
              was not that kind of conspiracy going on. I think
              everybody joins in and says, yeah, there probably was
              that kind of conspiracy going on. It’s a big amount, it’s
              a big load, it’s a valuable load. It was in the truck and
              there were people in a hotel and it was going other
              places and so forth. So there is probably a conspiracy
              on.
Id.
      Like Edwards, the defendant in Inocencio argued that this instruction
“relieved the government of its burden of proving that a conspiracy occurred
between [the challenging defendant] and the other defendants,” and the

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                                  No. 06-41471

defendant contended that the district court exhibited bias toward the
prosecution “by accepting that there was ‘probably a conspiracy going on.’” Id.
We rejected the defendant’s arguments.          We explained that in “the first
paragraph of the instruction, the district court merely described an agreement
in terms of the facts before the jury. The judge never instructed the jury that
the evidence showed that the defendants were involved in a conspiracy.” Id.
(emphasis added). Further, we noted that the district court concluded its
instruction with a reminder “that the government had to prove beyond a
reasonable doubt that each of the defendants was intentionally involved in the
criminal plan,” and that immediately before giving the instruction, the district
court impressed upon the jury that the ultimate question—who was involved in
the conspiracy—was for the jury to determine. Id.
      As to the second paragraph of the conspiracy charge, stating that no one
really challenged the existence of a conspiracy and that a conspiracy “probably”
was going on, we held that “the district court’s remarks again reflected the
evidence in the record. The court simply referred to the same evidence that [the
defendant’s attorney] relied on in his own closing argument,” acknowledging the
existence of a conspiracy, but maintaining that the government had not proven
that his client was involved.     Id. at 731.    Consequently, we affirmed the
judgment of the district court.
      We conclude now that our reasoning in Inocencio applies with equal force
to the comments challenged in this case. First, Edwards challenges the district
court’s comments that: he didn’t “think [there is] any real doubt that . . . there
was some kind of conspiracy going on over a period of time between a lot of
people to move marijuana from Laredo up North,” and that “in this case, the . .
. overlay of what the scheme is, came out with some clarity. It’s gathering stuff
here in warehouses and putting it in trucks and taking it up north and that sort
of thing.” This instruction, like that in Inocencio, simply reflected the evidence
in the record, evidence that defense counsel himself referred to in his closing

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argument.3      Also, as we stated in Inocencio, the district court here never
instructed the jury that the evidence showed that Edwards was involved in any
conspiracy. Thus, Edwards’s challenge to this instruction lacks merit.
       Second, Edwards challenges the district court’s comment that he “didn’t
think there’s much of a serious dispute that . . . whoever is liable for the
marijuana on these two occasions was intending to distribute it” because “it was
found in tractor-trailers that were apparently—intended to hit the road and go
somewhere.” Again, this comment just reflected the evidence in the record.
Furthermore, in the same breath, the district court told the jury, with respect
to determining who was responsible for the marijuana, “ultimately, that’s your
decision.” Thus, as was the case in Inocencio, the district court merely pointed
out that there did not seem to be much of a dispute that the evidence belied an
intent to distribute, but that ultimately the decision of who intended to
distribute rested within the province of the jury.
       Third, Edwards challenges the district court’s comment that “there was
obviously an intent to distribute to somebody.” When put in its proper context,
this statement amounted to nothing more than the district court instructing the
jury on what they could conclude under the law in the context of the facts of the
case. To begin, this specific instruction did not even apply to Edwards. It
expressly referenced his codefendant, Giddings. But even assuming arguendo
that the jury could transfer its implication to Edwards, the district court first
instructed the jury that the government had to prove that Giddings knew the
marijuana was in the truck. The district court then told the jury that it “could
look to the fact that it was going on a tractor-trailer up the highway, and [at] the
. . . value and the volume of it” to determine that there was an intent to



       3
         In his closing argument, Edwards’s attorney argued that at least two others accused
by the government were working with the informant to sneak their marijuana onto Edwards’s
trucks and “send it to their contacts in Detroit without anybody knowing about it . . . . That’s
what’s happening here.” (Tr. vol. 11:1380.)

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                                  No. 06-41471

distribute. The district court stated the law in terms of the facts of this case,
telling the jury what evidence it could use to find an intent to distribute, and
relied on facts urged by Edwards’s attorney in his closing argument, just like the
district court in Inocencio.
      Fourth, Edwards challenges the district court’s comment regarding the
amount of marijuana required under the statute prohibiting possession with
intent to distribute. We note that initially, the district court did nothing more
than explain that the government must prove that at least 100 kilos of
marijuana were involved, and that mathematically, 100 kilos is equivalent to
approximately 200 pounds, a unit of measure more familiar to most jurors in the
United States. The district court then noted that the evidence adduced at trial
showed that one of the seized loads consisted of 400 or more pounds of
marijuana, and concluded by reminding the jury that it had to be satisfied that
both loads met the statutory threshold. At no point did the district court add to
the evidence brought out at trial. See Cisneros, 491 F.2d at 1075-76. Thus, we
find no error.
      Fifth, Edwards challenges the district court’s instruction on the conspiracy
theory of possession. The district court informed the jury, “Even if they never
touched it, even if they’re not even in town, they’re all liable. Why? Because the
plan of which they were a part has been carried out.” Just like the conspiracy
instruction in Inocencio, in context, the district court did nothing more than
instruct the jury on the law in terms of the facts of this case. The instruction,
read as a whole, simply provided the jury with a hypothetical, that if the
conspiracy went as described, then every coconspirator would be liable for any
coconspirator’s possession of marijuana with intent to distribute.          As in
Inocencio, we find no error in the district court’s contextualized hypothetical.
      Sixth, Edwards challenges the district court’s characterization of the
central issue in the case as “the dispute, as I understand it, and you’re not bound
by this, but it is not so much what was factually going on. It’s a matter of what

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                                  No. 06-41471

was in the people’s minds. That’s where . . . it seems to me the whole argument
about this case has been.” In his closing argument, Edward’s attorney argued
to the jury, “Remember, in opening, I told you about my client, the whole thing
was knowledge, you know, did he know. And that’s what it’s all about.” Even
beyond what we noted in Inocencio where the district court relied on the same
evidence that the defense attorney relied on in his closing, here, the district
court did nothing if not help defense counsel make his point to the jury by
“observing where the question and knot of the business lies . . . .” Quercia, 289
U.S. at 469. Consequently, this instruction could not have prejudiced Edwards.
      We also note that like in Inocencio, 40 F.3d at 730-31, the district court in
this case gave innumerable curative instructions. In addition to the constant
reminders to the jury that it “must be satisfied” that the government proved its
case beyond a reasonable doubt, the district court also informed the jury that:
                   These legal instructions are binding, but—but
            nothing—indeed nothing else that I have said is
            binding on you, except for my rulings. I mean, you have
            to follow the law as I give it to you. . . . But you should
            not draw any conclusion at all from whatever I've said
            about -- about the guilt or innocence of the defendants.
                   In other words, you have to follow my legal
            instructions, but you should not speculate about how I
            might vote or what I think about the guilt or innocence
            of any defendant. That's not the point either. So you're
            not here to worry about what any of us think about the
            guilt or innocence of a defendant. That's your job as
            long as you base it on the evidence and you follow these
            legal instructions.
                   So anything -- anything that I've said or done,
            other than these legal instructions, you should
            disregard in reaching a verdict.
(Tr. vol. 11:1455-56.)
      “Juries are presumed to follow their instructions.” Hefferon, 314 F.3d at
222 (citing Zafiro v. United States, 506 U.S. 534, 540-41 (1993); see also United
States v. Garcia Abrego, 86 F.3d 394, 401-02 (5th Cir. 1996) (curative instruction


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                                  No. 06-41471

to the jury remedied any prejudice arising from the district court’s comment on
defendants’ nationality during voir dire)). While we have held in some cases
that curative instructions are insufficient to remove the taint caused by
substantially prejudicial trial court comments, see, e.g., Cisneros, 491 F.2d at
1075-76; Dopf, 434 F.2d at 208, as explained above, this is not such a case. Thus,
the comments in this case were not sufficiently “quantitatively and qualitatively
substantial,” Lankford, 196 F.3d at 572, to pose any threat to the fairness of
Edwards’s trial.
                      C. Ineffective Assistance of Counsel
      Edwards also contends that his trial counsel was ineffective in not
objecting to the allegedly improper comments.          “A claim that counsel's
performance fell below the threshold for effective assistance is analyzed under
the framework that the Supreme Court established in Strickland v.
Washington[, 466 U.S. 668 (1984)].” Faubion, 19 F.3d at 228. Consequently, to
succeed on his ineffective assistance of counsel claim, Edwards must show that:
“(1) [his] attorney's performance was deficient and (2) this deficient performance
prejudiced [his] defense.”   Id. (citing Strickland, 466 U.S. at 678).      Even
assuming that the performance of his counsel was deficient, Edwards “must
demonstrate that [his] counsel's deficient performance so prejudiced [his]
defense that the proceeding was fundamentally unfair. This test is the linchpin
and requires a showing that, but for counsel's errors, the result would have been
different.” Faubion, 19 F.3d at 228 (citations omitted).
      Edwards cannot meet this standard. First, his trial counsel did not
perform deficiently by failing to object to the district court’s jury instructions
because, as explained, they were not improper. Second, Edwards has not shown
that there was a reasonable probability that the outcome of his trial would have
been different if the district court had not explained the evidence and theories
of the case as he did because there was sufficient evidence from which a
reasonable jury could find that Edwards committed the offenses with which he

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was charged. See Giddings, 107 Fed. Appx. at 423. Accordingly, Edwards has
not shown that his trial counsel rendered ineffective assistance. See Strickland
466 U.S. at 694; Miller v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005); Alexander
v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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