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

No. 13

- 10281 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
ALEJANDRO ARAGON CENICEROS , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:11

- CR

- 96

- 39

Before WIENER, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Defendant

- Appellant Alejandro Aragon Ceniceros (Aragon) appeals his jury trial conviction of conspiracy to possess with intent to distribute five kilograms or more of cocaine and possession with intent to distribute 500 grams or more of cocaine . Aragon contends that the dist rict court violated his due process rights by prohibit ing him from presenting testimony from a defense witness, Jos e Flores. He asserts that the g overnment substantially

* 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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 February 19, 2014 Lyle W. Cayce Clerk Case: 13-10281 Document: 00512536856 Page: 1 Date Filed: 02/19/2014No. 13

- 10281

interfered with Flores’s decision whether to testify by threatening that he would be indicted for additional crimes and that his plea agreement would be invalidated if he testified for the defense. The existence of substantial governmental interference with a defense witness’s free and unhampered choice to testify is a factual question t hat we typically review for clear error. United States v. Thompson , 130 F.3d 676, 686

- 87 (5th Cir. 1997). As Aragon did not raise a claim of substantial interference in the district court , however, our review is for plain error only. See Puckett v.
Unit ed States , 556 U.S. 129, 134 (2009); United States v. Binker , 795 F.2d 1218, 1228 (5th Cir. 1986). And, he cannot succeed on plain error review b ecause his claim of substantial interference could have been resolved if he had properly raised it in the district court

. See United States v. Chung , 261 F.3d 536, 539 (5t h Cir. 2001). In any event, Aragon cannot demonstrate error, plain or otherwise, with regard to his claim of substantial interference

. See Puckett , 556 U.S. at 134; United States v . Viera , 839 F.2d 1113, 1115 (5th Cir. 1998) (en banc); Thompson , 130 F.3d at 686

- 87. He has fai led to show that the g overnment substantially interfered with Flores’s free decision to testify or that his defense was prejudiced by any such interference. S ee Viera , 839 F.2d at 1115. The record does not reflect that the g overnment made any threats, express or implied , directed at Flores or related to him. There is no indication that the

g overnment’s discussion with Flores’s counsel or its arguments to the district court about the likely consequences of Flores ’s testimony were improper

. See
id .; Thompson , 130 F.3d at 687

. Further more , the record reflects that Flores’s decision not to testify was an informed choice based on his concerns abo ut self

incrimination and future prosecution and was not the result of impermissible interference by the g overnment

. See United States v. Girod , 646 F.3d 304, 312

2 Case: 13-10281 Document: 00512536856 Page: 2 Date Filed: 02/19/2014No. 13

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(5th Cir. 2011) ; United States v. Bieganowski , 313 F.3d 264, 291 (5th Cir. 2002)

. Neither h as Aragon shown that Flores’s testimony would have b een ma terial or exculpatory

. See Viera , 839 F.2d 1115; Puckett , 556 U.S. at 135

. AFFIRMED.

3 Case: 13-10281 Document: 00512536856 Page: 3 Date Filed: 02/19/2014