IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50813

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAIME FLORES,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:11-CR-106-1

Before WIENER, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

A jury found Jaime Flores guilty of conspiracy to distribute and to possess

with intent to distribute heroin, and the district court sentenced him to 72

months in prison, to be followed by a three-year term of supervised release. On

appeal, Flores contends that the district court erred in its presentation of the

jury instructions. As he concedes, he did not object to the instructions, so we

review for plain error. See United States v. Bohuchot, 625 F.3d 892, 897 (5th Cir.

2010); United States v. Betancourt, 586 F.3d 303, 305-06 (5th Cir. 2009). Flores

United States Court of Appeals

Fifth Circuit

F I L E D

November 14, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-50813

thus must show a forfeited error that is clear or obvious and that affects his

substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he

makes such a showing, we have the discretion to correct the error but will do so

only if it affects the fairness, integrity, or public reputation of judicial

proceedings. See id.

In his first ground for relief, Flores contends that the district court

constructively amended the indictment by failing to limitthe jury’s consideration

to the three defendants named in the indictment, which permitted the jurors to

consider the possible participation of other individuals in the conspiracy. He has

not established a clear or obvious error arising from the court’s conspiracy

instructions. See United States v. Leahy, 82 F.3d 624, 630-31 (5th Cir. 1996). 

Although Flores also asserts that the jury should have been instructed about the

possibility of multiple conspiracies, he has not established that the district

court’s failure to give such an instruction affected his substantial rights. 

See Puckett, 556 U.S. at 135; United States v. Morris, 46 F.3d 410, 417 (5th Cir.

1995).

Flores asserts that the district court should have instructed the jury about

expert witnesses and should have warned the jury that Detective Mitch Russell

was testifying in a dual role as a lay and an expert witness. Russell’s testimony

about conclusions reached from “common sense or . . . past experience formed

from firsthand observation” does not rise to the level of expert testimony. United

States v. Ebron, 683 F.3d 105, 138 (5th Cir. 2012) (internal quotation marks and

citation omitted). Flores’s citations to case law in other circuits indicating that

Russell was testifying as an expert are insufficient to overrule this court’s

authority. See United States v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010). 

Because Russell was not testifying as an expert, the district court did not err in

failing to instruct the jury on expert evidence or on a witness’s dual role.

In his final ground for relief, Flores asserts that the jury instructions as

a whole constituted a cumulative plain error. He has not shown that there exist

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No. 11-50813

errors to be cumulated, and thus he is not entitled to relief. See United States

v. Brooks, 681 F.3d 678, 705 (5th Cir. 2012), petition for cert. filed (Aug. 9, 2012)

(No. 12-5812), and petition for cert. filed (Aug. 16, 2012) (No. 12-5847). Because

Flores has not shown reversible error, the judgment of the district court is

AFFIRMED.

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