### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 th e district court sentenced him to 72 months in prison, to be followed by a three-year term of supervised release. On ap p e a l , Fl o res contends that the district court erred in its presentation of the jury instructions. As he concedes, h e 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 14, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50813 Document: 00512053069 Page: 1 Date Filed: 11/14/2012No. 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
o n ly if it affects the fairness, integrity, or public reputation of judi c i a l proceedings. See id. I n h i s f i r st ground for relief, Flores contends that the district court constructively amended the in dict m e nt b y f ailin g to li mit th e 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 c l e a r or obvious error arising from the court’s conspiracy instructions. See U

n i ted 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 establ i shed that the district court’s failure to give such an i n s t r u c t ion 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 . . . p a s t e x p erience 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 gr ound for relief, Flores asserts that the jury instructions as
a whole constituted a cumulative plain error. He has not shown that there exist
2 Case: 11-50813 Document: 00512053069 Page: 2 Date Filed: 11/14/2012No. 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 Fl o r e s h as not shown reversible error, the judgment of the district court i s AFFIRMED.

3 Case: 11-50813 Document: 00512053069 Page: 3 Date Filed: 11/14/2012