* Pursuan t to 5 T H C IR

. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except in the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-51074

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CARLOS GARCIA-FLORES,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(DR-97-CR-196-ALL)

April 22, 1999

Before WISDOM, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM: *

A jury convicted Carlos Garcia-Flores of bringing two illegal aliens into the United States for

commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)( 2)(B)(ii), and

illegally transporting these unauthorized aliens while inside the United States, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(ii) and 18 U.S.C. § 2. The district court sentenced Garcia-Flores to concurrent 33-

month term s o f imprisonment and concurrent 3-year terms of supervised release. Garcia-Flores

timely filed this appeal. We affirm.

Garcia-Flores first argues that the prosecutor made improper statements during his rebuttal

closing argument that thereby deprived Garcia-Flores of his right to a f air trial. A prosecutor’s

improper comments may constitute reversible error if they substantially affect the defendant’s right2 United States v. Andrews , 22 F.3d 1328, 1341 (5th Cir. 1994).

3 United St ates v. Munoz , 150 F.3d 401, 414 (5th Cir. 1998), c ert. denied , 119 S. Ct. 887

(1999).

4 Id. at 415. I n reaching this determination, we must weigh several factors: “(1) the magnitude

of the prejudicial effect of the statements; (2) the efficacy of any cautionary instruction; and (3) the strength

of the defendant’s guilt.” Id. (internal quotation marks and citation omitted).

5 See id.

6 See id.

7 See id.

8 United States v. Washington , 44 F.3d 1271, 1278 (5th Cir. 1995) (citation omitted).

9 See id.

2 to a fair trial. 2 In evaluating a claim of pro secut o rial misconduct, we must first ask whether the

challenged remark was inappropriate. 3 If so, we then determine whether t he remark affected the

defendants’ substantial rights. 4 Garcia-Flores first takes issue with the prosecutor’s opening comment

o n rebuttal that defense counsel’s argument was “[s]moke, confusion, word games, slime”. Even

as suming t hat these remarks were inappropriate, their prejudicial effect was not of sufficient

magnitude to deprive Garcia-Flores of a fair trial. 5 Moreover, the district court’s curative instructions

were sufficient to ensure that these remarks did not unduly prejudice the jury. 6 Lastly, the evidence

against Garcia-Flores was strong, as two alien witnesses testified that Garcia-Flores had offered to

smuggle them into the United States for money, that he acted as their “guide” as they waded across

the river, and that he drove the truck once inside the United States. 7 Garcia-Flores also takes issue

with the prosecutor’s assertions that (1) the jury, to acquit Garcia-Flores, would have to conclude

that the Border Patrol agents were lying; and (2) these agents were too busy to manufacture a case

against Garcia-Flores and would lose their jobs if caught t ry ing to do so. In assessing these

assertions, we “ must review the allegedly improper comment ‘in light of the argument to which it

responded.’” 8 Because these statements served to rebut defense counsel’s implied arguments, they

were not improper. 910 United States v. Martinez , 975 F.2d 159, 160-61 (5th Cir. 1992).

11 See id. at 161.

12 See id. at 160-61.

13 See United States v. Gonzalez

, 76 F.3d 1339, 1346 (5t h Cir. 1996) (the jury may choose

among reasonable constructions of the evidence).

14 United States v. Asibor

, 109 F.3d 1023, 1034 (5th Cir. 1997), cert. denied , 118 S Ct. 638

(1997).

15 Id.

3 Garcia-Flores next contends that the evidence was insufficient to prove that he had brought

unauthorized aliens into the United States for commercial advantage or private financial gain. We

review the sufficiency of the evidence to determine whether any reasonable trier of fact could have

found that the evidence established guilt beyond a reasonable doubt. 10 In making this determination,

we view all the evidence, and all reasonable inferences to be drawn from it, in the light most favorable

to the verdict. 11 In the instant case, two alien witnesses testified that they agreed to pay Garcia-Flores

to bring them into the United States, that Garcia-Flores threatened to return them to Mexico if they

failed to pay him, and that Garcia-Flores led them across the river “like a guide”. The evidence was

therefore sufficient to establish beyond a reasonable doubt that Garcia-Flores had brought two aliens

into this country for his own fi nancial gain. 1 2 Although there were some incongruities in the

witnesses’ statements, the jury resolved any discrepancies against Garcia-Flores. 13

Finally, Garcia-Flores argues that the district court erred by refusing to provide the jury with

his proposed instruction clarif ying t he meaning of the phrase “commercial advantage and private

financial gain”. We review a district court’s refusal to provide a requested jury instruction for an

a buse of discretion. 14 District courts enjoy substantial latitude in formulating jury instructions. 1 5

Accordingly, we will reverse only if the requested jury instruction: (1) was a substantially correct

statement of the law; (2) was not substantially covered in the charge as a whole; and (3) concerned

an important point in the trial, the o mission of which seriously impaired the defendant’s ability to16 Id.

17 See United States v. Maseratti , 1 F.3d 330, 336 (5th Cir. 1993).

4 present an effective defense. 16 Although it is reversible error to refuse a charge on a defense theory

for which there is an evidentiary fo undation, and which, if believed, would be legally sufficient to

support an acquittal, a trial judge is under no obligation to give a requested jury instruction that

misstates the law. 17 Garcia-Flores concedes by implication that his requested instruction has no

foundation in the text of 8 U.S.C. § 1324(a)(2)(B)(ii). His proposed clarification was suggested by

an application note t o U.S.S.G. § 2L1.1, which requires payment or the expectation of payment

before an upward adjustment for smuggling “for profit” may be imposed. Given § 1324's silence on

the subject, however, Garcia-Flores’s requested instruction was not a substantially correct statement

of the law. Accordingly, the district co urt did not abuse its discretion by refusing to provide the

jurors with the requested instruction.

AFFIRMED.