* 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

January 5, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-41678

Summary Calendar

UNITED STATES OF AMERICA,

Plaint iffAppellee,

versus

DAVID MENDOZA-SALINAS,

DefendantAppellant.

---------------------------------------------------------- Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:02-CR-1495-ALL

--------------------------------------------------------

Before WIENER, BENAVIDES and STEWART, Circuit Judge:

PER CURIAM: *

David Mendoza-Salinas appeals his jury-trial conviction of one count of possession with intent

to distribute in excess of 100 kilograms of marijuan a in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B).Mendoza-Salinas argues t hat he did not knowingly, intelligently, and voluntarily waive his

Sixth Amendment right to conflict-free counsel. He contends that the district court erred in failing

to conduct an adequate hearing pur suant to U nited States v. Garcia

, 517 F.2d 272, 278 (5th Cir.

1975), to determine whether any conflict of interest might exist or arise because of his employer’s

payment of his legal fees. He argues further that the district court erred in failing to conduct a second

Garcia hearing when a potential conflict became apparent during the sentencing hearing. MendozaSalinas has faile d t o demonstrate the possibility that his counsel had conflicting loyalties was

sufficiently apparent to impose a duty upon the district court to conduct a Garcia hearing. S ee Wood

v. Georgia

, 450 U.S. 261, 272 (1981); United States v. Carpenter

, 769 F.2d 258, 263 (5th Cir. 1985).

For the first time on appeal, Mendoza-Salinas argues that improper comments made by the

prosecutor during closing argument at trial warrant reversal of his conviction. The prosecutor’s

remarks did not involve an expre ssion of t he prosecutor’s personal opinion. S ee United States v.

Davis

, 831 F.2d 63, 67 (5th Cir. 1987). Moreover, the prosecutor’s remarks were permissible

because the prosecutor me rely recounted conflicting evidence in the record to the jury and then

attempted to persuade the jury to conclude that Mendoza-Salinas had been untruthful in his testimony

based on that evidence. See United States v. Washington , 44 F.3d 1271, 1278-79 (5th Cir. 1995).

Furthermore, the district court’s jury instructions were sufficient to cure any prejudice. S ee United

States v. Ramirez-Velasquez

, 322 F.3d 868, 875 (5th Cir.), cert. denied

, 540 U.S. 840 (2003). There

is no plain error.

Finally, also for the first t ime on appeal, Mendoza-Salinas argues that, pursuant to the

Supreme Court’s ruling in A pprendi v. New Jersey

, 530 U.S. 466 (2000), the Government was

obliged to, but did not, prove to the jury beyond a reasonable doubt that he knew that he possessedthe particular type of controlled substance at issue in this case. He concedes that this argument is

foreclosed by our opinion in United States v. Gamez-Gonzalez , 319 F.3d 695, 700 (5th Cir.), cert.

denied

, 538 U.S. 1068 (2003), whic h held t hat knowledge of the drug type and quantity is not an

element of the offense, and he raises the issue only to preserve it for Supre me Court review.

Mendoza-Salinas’s argument is indeed foreclosed. See Gamez-Gonzalez , 319 F.3d at 700.

Accordingly, the judgment of the district court is AFFIRMED.