### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12

- 60980 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
ANNETTE M. PIERCE, also known as Norma Lisa Thiem, also known as Myrtis Annette Thiem , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:05

- CR

- 6

- 2

Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. PER CURIAM: * Annette M. Pierce appeals her jury trial conviction for kidnapping and carjacking for which she received a sentence of 110 months of imprisonment to be followed by a three

- year term of supervised release. Pierce argues that the district court plainly erre d i n instructing the jury on the defense of duress

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 19, 2013 Lyle W. Cayce Clerk Case: 12-60980 Document: 00512476849 Page: 1 Date Filed: 12/19/2013No. 12

- 60980

because it did not rely on the definition of one of the element s of that defense contained in the Model Penal Code . She contends that the instruction permitted the jury to reject he r defense based on her negligence in placing herself in a position where she would have t o commit the charged offenses.
P ierce acknowledges that she did not object to the instruction in the district court and that review is for plain error. See United States v. Daniels , 252 F. 3d 411, 414 (5th Cir. 2001).
T he district court’s instruction tracks this circuit’s Pattern Jury Instructions and is consistent with this court’s precedent regarding the elements of the defense of duress

. See United States v. Dixon , 413 F.3d 520, 523 (5 th Cir. 2005); United States v. Posado

- Rios , 158 F.3d 832, 873 (5th Cir. 1998); United States v. Willis , 38 F.3d 170, 179 (5th Cir. 1994). The district court did not commit a clear or obvious erro r
-- if any

-- in giving the approved instruction, and thus, Pi erce has not demonstrated plain error. See Puckett v. United States , 556 U.S. 129, 135 (2009) ; Jimenez v. Wood County, Tex. , 660 F3d 841, 847 (5th Cir. 2011). Pierce argues that even if the instruction was correct, the district court plainly erred in failing to further define the terms of recklessness and negligence. We need not reach that issue

. Pierce testified that, despite opportunities to escape or alert third parties about Shugart’s criminal activities, she voluntarily chose to continue to participate in the criminal activity to expedite her r eturn to South Carolina. These admissions showed that Pierce had a reasonable legal alternative to violating the law that would have allowed her to escape the threatened harm , which supports the rejection of h er duress defense

. See United States v. Bailey , 444 U.S. 394, 410 (1980). Accordingly, P ierce has not shown that the jury instruction affected her substantial rights or that our failure to correct any error would seriously affect

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- 60980

the fairness , integrity, or public reputation of j udicial proceeding s

. See Puckett , 556 U.S. at 135. Thus, she has s hown no reversible plain error. Pierce alternatively argues that h er counsel was ineffective in failing to raise the foregoing challenges to the jury instructions

. We decline to reach these claims on direct appeal, without prejudice to Pierce’s ability to raise them in a postconviction proceeding

. See United States v. Gulley , 526 F.3 d 809, 821

- 22 (5th Cir. 2008). The judgment is AFFIRMED.

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